Land, Citizens, and Farmers: Recognising Political Constitutionalism

Indian political and legislative processes are far from perfect. Recently, this has led to arguments (on this blog, and elsewhere) exploring the possibility of increased judicial intervention in the legislative process – where the judiciary ‘examines the validity of procedures leading to enactment’. In this post, I suggest that judicial scrutiny of legislative activity should not underestimate the power of democratic processes to produce respect for the rule of law and rights. However, this approach requires us to locate the ‘constitutionality’ of legislative action in the legitimate decision-making processes of the political system (as opposed to the legal system). Through an examination of the events surrounding the Land Acquisition Bill (2015), the Citizenship Amendment Act (2019), and the three agricultural laws (2020), I highlight how actors beyond courts may impact the constitutionality of legislation.

I briefly outline the two approaches to ‘constitutionality’ under the rubrics of legal and political constitutionalism and then analyse the three legislative events from the lens of political constitutionalism. I do not suggest a wholesale bar on judicial interventions in the legislative process (nor do authors who advocate judicial interventions suggest abandoning other means to improve the legislative process). I also do not delve into how political or legislative reforms may be achieved. The purpose of this post is merely to highlight how democratic processes can also be an avenue to achieve constitutional goods.

Legal and Political Constitutionalism

Legal constitutionalism suggests that because citizens and legislators may not always embrace the values necessary for constitutional democracy, the respect for these values needs to be protected by judges. Therefore, judges serve as a key restraint on legislative power – evaluating whether legislation satisfies constitutional values. (E.g., the Supreme Court invalidating legislation that violates the freedom of speech.) Stepping outside the grammar of rights, such exercises of legislative power typically involve substantive and fundamental competing interests (e.g., public order v free speech), and legal constitutionalism suggests that judges are best situated to settle these crucial issues. However, dissenting opinions and overruled judgements indicate that judges themselves disagree over which outcomes uphold constitutional values. Therefore, the ‘correctness’ of these outcomes largely stems from legal structures that confer jurisdiction on courts to settle these disputes and confer finality on judicial determinations on competing societal interests.

Political constitutionalism argues that ‘the democratic process is equally, if not more legitimate and capable than courts at resolving these substantive and fundamental disagreements.’ Rather that suggesting judicial oversight, it focuses inter alia on: (i) improving the democratic process through improving electoral and parliamentary systems (e.g., proportional representation and parliamentary scrutiny); (ii) creating multiple inflection points where power is balanced (federalism, off-set election cycles, and independent bodies); and (iii) political parties competing for the support of diverse interest groups who themselves have cross-cutting interests, compelling political parties to listen varied viewpoints and often compromise. Crucially, it ‘locates the ‘constitutionality’ of legislation within the political and not the legal system’ by focusing on how decision making procedures can be made legitimate through balancing institutions and ensuring transparent participation. Where legal constitutionalism may emphasise judicially policed rights as central to constitutional culture, political constitutionalism sees democratic participation as causing citizens to identify with a constitutional system.

This may sound idyllic, and caveats must be made in the Indian context. India’s political and legislative structures contain several democratic weaknesses (role of the governor, ordinance powers, anti-defection, partisan speakers, lack of intra-party democracy, imbalanced federalism). As a result, the efficacy and visibility of constraints on power envisioned by political constitutionalism may vary or be entirely absent. In all the three legislative instances discussed below, there was immense public pressure in the form of demonstrations, speeches, strikes, and vigils despite fragile protections for civil liberties. The need for such resistance to hold power accountable does not undermine the argument for political constitutionalism (such actions are firmly within the democratic process envisioned by political constitutionalism) but rather points to the urgent need to reform our political structures to allow for public opinion, contestation, and compromise through elected officials without blood having to be shed.

Readers will forgive my painfully brief explanation of three complex legal issues. The goal here is merely to identify when the structures of political constitutionalism are at play (I tag them in italics for brevity).

Land Acquisition Bill

On 24 February 2015, the Government introduced a bill (Land Acquisition Bill) to replace an ordinance which amended the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013. The Land Acquisition Bill identified certain situations when the government did not need to obtain landowners’ consent or conduct a social impact assessment before acquiring land. The Land Acquisition Bill passed the Lok Sabha on 10 March but the government did not advance the Bill in the Rajya Sabha because it lacked a majority in the upper house (bi-cameralism and federalism). The existing ordinance was due to expire on April 5, but the Rajya Sabha session continued till 8 May. As ordinances cannot be passed when Parliament is in session, the ordinance looked certain to expire until, on 28 March, the President prorogued (terminated the session of) the Rajya Sabha, allowing the government to re-issue the ordinance on April 3, effectively circumventing Parliamentary approval. These actions were challenged in the Supreme Court as an ‘abuse of the President’s ordinance powers’.  

The Land Acquisition Bill was referred to a Joint Parliamentary Committee. In the BJP chaired committee, it was reported that all eleven BJP MPs moved amendments reinstating the need to acquire landowners consent and conduct social impact assessments (parliamentary scrutiny and intra-party contestation). However, the Land Acquisition Bill never passed the Rajya Sabha, and in August 2015 the ordinance was allowed to lapse two months before the 2015 Bihar elections (staggered electoral cycles). The Supreme Court would eventually dismiss the court challenge as infructuous.

Citizenship Amendment Act

The Citizenship Amendment Act, 2019 (CAA) allows illegal migrant to apply for citizenship if: (i) they entered India before 31 December 2014; (ii) they receive exemptions under the Passports and Foreigners Acts; (iii) they are from Afghanistan, Bangladesh, or Pakistan; and (iv) they are Hindu, Sikh, Christian, Parsi, Jain, or Buddhist. The Government claimed the intention of the law was to protect religious minorities in Afghanistan, Bangladesh, and Pakistan from persecution, and the exclusion of Muslim migrants was a ‘reasonable classification’ within the legislature’s discretion given that Muslims constituted a majority in these three countries.

However, critics of the CAA argued that for the Act to be constitutional, the classification must be connected to the purpose of the legislation. If the goal of the CAA was to protect individuals from religious persecution, then the test under the Act must be – is the individual being persecuted? In other words, the law cannot (without basis) presume that Muslims are not persecuted in Afghanistan, Pakistan, and Bangladesh. The exclusion of Muslims was thus disconnected from the goal of protecting individuals from persecution, and hence violated Article 14 (equality before law). It was also pointed out that the exclusion of Rohingya Muslims from Myanmar suggested an unprincipled (and potentially discriminatory) use of legislative power.

The adoption of the CAA led to sustained nationwide protests. The CAA was also opposed by several states and the Union Government received resolutions the legislatures of Meghalaya, West Bengal, Tamil Nadu, Kerala, and Punjab denouncing the CAA (federalism). Kerala and Rajasthan would go on to sue the Union Government under Article 131 of the Constitution over the CAA. The Government has not repealed the CAA. However, despite Parliamentary manuals requiring that subordinate legislation (rules) for the legislation be adopted within six months of a law passing, two years later, the Union Government is yet to adopt any rules for the CAA (as of writing, the Home Ministry has requested time till January 2022). In the two years since the passage of CAA, 140 petitions have been instituted challenging the constitutionality of the legislation, but the Supreme Court has yet to render a verdict.

Agricultural Laws

In 2020, the Government introduced three laws aimed at reforming the agricultural sector (Farm Laws), discussed in detail here. The laws were passed in the Rajya Sabha using a voice vote instead of a division vote. A voice vote is where the chairperson places the issue before the house and decides the vote based on whether the yes’s or no’s are louder. This may be fine to quickly dispose of issues on which there is significant consensus. However, for more closely contested votes, the process of a division vote exists (where MPs vote electronically). It stands to reason that any vote that is won during a voice vote should also be able to pass in a division vote (otherwise the vote is wholly illegitimate as the chairperson has usurped the collective decision-making of the house and replaced it with their own singular discretion). To guard against this risk, the Rajya Sabha Rules expressly provide that if the outcome of a voice vote is challenged, there must be a division vote (r. 253).

The Farm Laws were passed amongst pandemonium in the Rajya Sabha, and the Chairperson contended that opposition MPs were not in their seats when they challenged the voice vote (a claim contradicted by video footage of the day but an issue also not helped by the fact that the audio feed from the Rajya Sabha was cut for half an hour). After the Farm Laws were passed, the leader of the opposition met the President who protested the breaches of parliamentary procedure and requested the President to refuse assent (another structural inflection point). Soon after, the NDA Government lost its oldest coalition partner (the SAD) (coalitions as a restraint on power). The yearlong protests by farmers and the incident at Lakhimpur Kheri have sufficiently entered the popular consciousness that they need not be repeated here. Towards the end of this stalemate, an MP from the ruling party introduced a private members bill to secure some of the protections sought by protesting farmers (intra-party contestation). Eventually, in December 2021 the Farm Laws were repealed in the lead-up to state elections in Uttar Pradesh and Punjab (staggered electoral cycles).

Conclusion

This piece began by noting that the shortfalls in our political and legislative system to meet our needs for legitimate government can be addressed both through judicial interventions and through political structures. The goal of the above examples is to highlight how political structures such as bi-cameralism, federalism, staggered elections, coalition politics, intra-party democracy, and public protests can restrain power, arrive at decisions about contentious issues in legitimate ways, and respond to breaches of the rule of law. These structures are by no stretch perfect. However, reform of political structures must begin from an understanding that they are worth reforming. At a bare minimum, this requires a discourse which situates the constitution in the political system beyond courts. It also requires us to be able to look past political double-speak and understand when political structures are at play.

There is also reason to be cautious of increased judicial intervention. It is notable than in all three of the above examples, constitutional courts have been conspicuous in their inability or unwillingness to intervene. It is always possible to examine individual situations and argue that a court acting as it is supposed to, could have done better. But this ignores the reality that just as political actors do not always act in conformity with their roles, courts are also not perfect functionaries. Arguments for increased judicial intervention must address the reality that constitutional courts in India have their own structural and behavioural weakness. Lastly, where judicial interventions may vest more power in judges, a focus on reforming electoral systems and structuring institutions so that governmental power is constantly subject to meaningful competition and accountable to cross-cutting interests creates space for a broader set of actors to engage in constitutional authorship.

Intermediary Guidelines and the Digital Public Sphere: Balancing the Scales

The last two posts examined prominent new features of the Intermediary Guidelines 2021, automated filtering (here), and tracing first originators (here). However, the undoubted goal of the Guidelines, demonstrated by the express regulation of “Significant Social Media Intermediaries”, is to hold large social media companies accountable for their role in structuring online speech. This post examines the scheme of the Guidelines to examine how effectively they regulate social media.

I begin by examining the liability for communicating unlawful speech to understand why intermediaries are granted immunity for hosting unlawful content. Next, I explain the power imbalance between tech companies and internet users. Finally, I analyze the Intermediary Guidelines’ attempt to remedy this power imbalance by providing various reliefs to users vis-a-vis online platforms.

Speech models and their inadequacy for online platforms

In determining liability for communicative acts, the law distinguishes between publishers and distributors. Publishers are liable for the content they publish, while distributors are typically not liable for content they distribute because they are not deemed to know if they are distributing unlawful content. For example, a newspaper may be liable for an article it solicited/sourced, compiled and edited but a newsstand selling the newspaper will not be held liable because it could not be expected to know the contents of every article in every newspaper it sells. (Volumes could be written on the myriad of nuances within these concepts but acknowledging the distinction will suffice for now.)   

However, this publisher-distributor distinction breaks down in the case of online platforms. They are not neutral distributors as they actively moderate and rank content to determine what users see. But they are also not quite publishers, as they are not responsible for creating the content on their platforms. Unlike a newspaper, whose employees write the articles, on platforms, it is internet users not a platform’s employees that create content. Thus, the publisher-distributor distinction serves legislators poorly when deciding how to regulate online platforms.

Further, legislators worry that if online intermediaries are held liable for unlawful content on their platforms (like a publisher), intermediaries would either: (1) adapt their behaviour to fall under the distributor model and exercise no control over their platforms, leading to the internet being filled with the worst kinds of content; or (2) follow the publisher route and takedown any content that was remotely unlawful, leading to vast horizontal censorship by online intermediaries and defeating the purpose of the decentralised, user driven internet. Enter intermediary immunity.

Intermediary immunity and voluntary moderation

The approach taken by several legislatures, including India’s, has been to provide online intermediaries legal immunity for unlawful content on their platforms even though they filter and curate content. This approach ensures two very important goals: (1) online intermediaries can voluntarily filter content without worrying about a publisher’s liability, thus resulting in less abusive speech online for users; and (2) intermediaries have enough breathing space to not take down user content en masse, resulting in the protection of users’ free speech against horizontal censorship. Rule 3(1)(d) (third proviso) of the Intermediary Guidelines 2021 expressly notes that intermediaries will not lose their status as neutral entities even thoughthey may voluntarily remove a wide range of presumptively illegal content from their platforms.

But this is where things start to get tricky. The definition of ‘presumptively illegal speech’ set out in Rule 3(1)(b) of the Intermediary Guidelines is so broad that platforms have immense discretion in what content to take down within the scope of the rule itself. Under Rule 3(1)(b) intermediaries may takedown content that (inter alia):

(ii) is defamatory, obscene, pornographic, paedophilic, invasive of another‘s privacy, including bodily privacy, insulting or harassing on the basis of gender, libellous, racially or ethnically objectionable, relating or encouraging money laundering or gambling, or otherwise inconsistent with or contrary to the laws in force […]

(viii) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign States, or public order, or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting other nation […]

(x) is patently false and untrue, and is written or published in any form, with the intent to mislead or harass a person, entity or agency for financial gain or to cause any injury to any person

These are obviously very broad terms and intermediaries may reasonably disagree with their users over whether content falls within these categories. This creates a conflict between the two goals of intermediary immunity. On the one hand immunity is essential to incentivising platforms to freely take down the worst forms of content without risk of liability, but the wide discretion Rule 3(1)(b) gives them results in users eventually complaining of horizontal censorship (as has already happened on both sides of the political spectrum).

(Note: in Shreya Singhal the Supreme Court ruled that the contents of Rule 3(1)(b) should be limited to the restrictions contained in Art. 19(2) of the Constitution. This may be both normatively undesirable and impractical, as there are several categories of content that fall outside of Art. 19(2) that we may want platforms to voluntarily restrict, e.g., copyright and trademark infringing content, sexually explicit content not rising to the ‘public morality’ threshold, fraudulent content causing consumer harm etc.)

Thus, legislation/regulation must balance the protections granted to intermediaries with the risk of horizontal censorship. This is trickier than it sounds, as the underlying interests of platforms (maximising advertising revenue by the collection and sale of personal data) and users (free speech and privacy) can diverge significantly.   

The problem magnified manyfold

As I discussed in much greater detail (here), the problem of horizontal censorship is multiplied severalfold because of two crucial factors. First, large online social media platforms are central to public discourse. Second, because there are only a handful of these platforms, simply leaving a platform (or worse being suspended) can severely curtail a user’s participation in public discourse. As Kate Klonick poignantly notes, ‘we are dependent on these private platforms to exercise out public rights.’

The true extent of how vulnerable citizens are is demonstrated at several layers. First, as moderation is conducted by private entities, it is undemocratic. While platforms may respond to public outcries, this only ensures that the already marginalised are disproportionately impacted with little hope of recourse. Next, platforms do not disclose their moderation policies. While ‘Terms of Service’ and ‘Community Guidelines’ are publicly available, the rules and procedures platforms use to take down content constantly change and are rarely disclosed. For example, Facebook ‘accidentally’ blocked the hashtag ‘ResignModi’, later reinstating the content with no explanation as to the procedure employed either in the take down or reinstatement. Finally, the stranglehold online platforms have over public discourse may be leveraged by democratic governments to entrench their power by silencing criticism.

Balancing the scales

Just as gender and caste have historically constituted centres of private power, modern social media represents a new site where citizens are dominated. Regulation must seek to remedy this power imbalance but also ensure that the other interest behind intermediary immunity (incentivising voluntary moderation by not saddling platforms with a ‘publisher’s liability) is not annihilated. The Intermediary Guidelines leaves the basic structure of intermediary immunity untouched (except for several additional compliance requirements by social media companies geared towards expanding investigative and enforcement powers) but attempts to remedy the power imbalance by granting users several reliefs vis-à-vis online intermediaries.    

Just as platforms have the discretion to both take down and not take downspeech, internet users may also seek both outcomes. A user may be aggrieved by content and want an intermediary to take down content (the “Take Down Relief”). Alternatively, a user may be aggrieved by the decision of a platform to take down content, and want it reinstated (the “Keep-Up Relief”).

The Take Down Relief

One part of the Take Down Relief involves citizens approaching courts seeking orders (typically in the form of an injunction) against content being displayed online. The Supreme Court in Shreya Singhal ruled that it was impermissible to require online intermediaries to take down content merely because someone complained against a piece of content – a judicial order was necessary (¶117). The decision is in line with the above stated twin goals of intermediary immunity. By protecting platforms from liability until they received a court order, intermediaries could continue to voluntarily remove the worst forms of content from their sites. Crucially, by protecting platforms from being sued for content on their sites until a court ruled the content was (at least prima facie) unlawful, intermediaries would not take down content en masse, thus avoiding horizontal censorship. Courts would weed out frivolous complaints and direct intermediaries to take down content after balancing all the interests involved.

Thus, users do have a Take Down Relief against illegal content in the form of courts and the Intermediary Guidelines 2021 do not interfere with this relief (in fact they expressly recognise it). However, this is by no means a perfect relief, given the time and costs involved in getting a court order. Further, Rule 3(1)(b) is so broad that courts have little guidance (and a lot of discretion) when deciding to take down online content. For example, the Delhi High Court noted that some factors that should be considered prior to take down are (i) the comparative importance of the rights at issue; (ii) the availability of less restrictive measures; (iii) the costs associated with implementing the measures; and (iv) the efficacy of the measures implemented by the ISP. However, another bench of the High Court merely noted that the plaintiffs had demonstrated a prima facie case of defamation and directed the intermediary to block the content. Yet another bench directed search engines to de-index content and permitted a plaintiff to directly approach Internet Service Providers (ISPs) to block additional content uploaded after the original take down order by the court, allowing ISPs to challenge the take down if they believed the plaintiff has exceeded the terms of the original order (which they have no incentive to do).

Rolling back Shreya Singhal

Rule 3(2) of the Intermediary Guidelines 2021 also introduces a new Take Down Relief. A user may launch a complaint where content “exposes the private area of such individual, shows such individual in full or partial nudity or shows or depicts such individual in any sexual act or conduct, or is in the nature of impersonation…” The intermediary is obligated to take down such content within 24 hours of receiving a complaint. On the one hand, the Rule empowers users vis-à-vis social media platforms, and a cogent case may be made that where a user complains over explicit/intimate images of themselves uploaded against their consent, and no other interests are involved, users should not be required to go to court. (Note, they may not even haveto go to court if the intermediary agrees and takes down content once flagged, but that approach puts the relief at the sole discretion of the platform.)

On the other hand, requiring intermediaries to take down content at the behest of a private user was an approach expressly rejected by Shreya Singhal to protect against platforms being swamped by complaints and taking down all content that any other user disagreed with. The simple truth is that hard cases exist. For example, the content complained against may depict two people, one who wants the content to stay online and one who wants it taken down. Now imagine the content is also a matter of public interest. These delicate situations where rights need to be balanced are exactly why Shreya Singhal insisted on court oversight to guard against overzealous complainants and over-cautious platforms.

Efficacy probably lies somewhere between Rule 3(2) and Shreya Singhal and the Guidelines could have: (i) distinguished between cases where interests need to be balanced and where they do not be; (ii) set up an independent body/fast track process to hear take down claims; or (iii) narrowed judicial discretion on when content should be taken down. However, the Guidelines ultimately fails to either improve the court order system of Shreya Singhal but also creates a blanket workaround that may lead to content being taken down at the sole behest of a disgruntled user in delicate cases where rights ought to have been balanced by a court.   

The Keep-Up Relief

Users may also have a grievance when platforms take down content that users believe should have stayed up (e.g., see the suspension of Sanjay Hegde’s Twitter account over: (i) the use of August Landmesser’s photo defying the Nazi salute; and (ii) retweeting a poem by a CPI (Marxist-Leninist) politician). As discussed above, while users can review ‘Terms of Service’ and ‘Community Guidelines’, the actual rules and procedures employed to take down content are not transparent.

Prior to the Intermediary Guidelines 2021, a user could pursue a contractual remedy, arguing that the speech did not violate the platform’s ‘Terms of Service’. Such remedies are unlikely to succeed as contracts are typically skewed in favour of platforms and confer broad discretion to take down content. For example, Facebook’s Terms of Service state that it can “remove or restrict access to your content, services or information if we determine that doing so is reasonable necessary to avoid or mitigate adverse legal or regulatory impacts to Facebook.”

Hedge is presently pursuing a public law remedy under Article 226, arguing that Twitter performs a social/public function and should thus be required to respect his free speech (Art. 19) and non-discrimination (Art. 14) rights. Without going into the merits of this argument, such constitutional gymnastics could be avoided by legislation/regulation that directly gives users recourse against social media platforms. Enter the Intermediary Guidelines 2021.

Before we begin, it should be noted that the Intermediary Guidelines 2021 risks substantially aggravating the problem of intermediary take down itself, by incentivising/mandating social media platforms to employ automated filtering technologies. The imprecision of such technologies is likely to cause more users than ever to seek out a Keep-Up Relief. (See my previous post on the subject here.)

Rule 4(8) of the Guidelines attempts to provide such a Keep-Up Relief. The Rule states that where a Significant Social Media Intermediary voluntarily disables content, the platform must, prior to the disabling of content, provide the creator/poster of the content a “notification explaining the action being taken and the grounds or reasons for such action”. Next, the platform must also provide the user with a “reasonable opportunity” to dispute the platform’s decision and request the reinstatement of the content. This creates a regime where intermediaries must provide reasoned notice and meaningful review to internet users when content is taken down.

On the face of it, this is a step in the right direction as it forces social media platforms to employ some minimum rationality and allows users a chance to contest take down decisions. But how well will this structure of accountability hold up when confronted with hard cases (which it undoubtedly will be)? First, the obligation merely requires social media platforms to provide an opportunity for users to dispute the decision and does not improve on the standards of content evaluation to be applied by them – recall that Rule 3(1)(b) is broad and does not meaningfully restrict the platform’s discretion in decision making. Judges themselves struggle to impose uniform standards on when content should be taken down. While platforms may seek to ensure a measure of uniformity, unlike judicial decisions, the reasoning by platforms under Rule 4(8) is not required to be publicly available and no system of precedent applies – creating a risk of opaque and haphazard decisions.  

The Achilles heel of Rule 4(8)

It is also important to understand that the Intermediary Guidelines 2021 regulate the conditions for intermediary immunity, i.e., the conditions they must satisfy to not be treated as a publisher and sued for hosting unlawful content. Now, even if an intermediary breaches the notice and hearing obligation under Rule 4(8), the consequence is a loss of this legal immunity for hosting unlawful content. But the intermediary is not hosting the content (indeed the whole dispute is because the intermediary is refusing to host the content), so there is no risk for the intermediary to losing this legal immunity. Simply put, intermediaries cannot be sued for content they are not hosting, so there is no legal risk associated with arbitrary voluntary take downs. This highlights the folly of trying to offer users recourse to moderation decisions through conditions of intermediary immunity, which is what the Intermediary Guidelines are. 

Lastly, Rule 4(8) does not open the door for users to go to more legitimate body and argue for content to be reinstated. In fact, if courts were to intervene under Rule 4(8), this would undermine the structure of Section 79 and the Intermediary Guidelines, which are premised on treating intermediaries as neutral even though they voluntarily take down content. In the case of Take Down Reliefs, where Person A is aggrieved by content posted by Person B and asks the Court to direct Intermediary X to stop publishing the content, a Court can provide this relief while still upholding the legal fiction of intermediary neutrality (i.e. accepting Intermediary X’s decision to not take down the content as it is neutral like a newsstand). Section 79, the Guidelines, and Shreya Singhal are premised on not examining the correctness of Intermediary X’s decision to keep the content up.

However, where a platform has taken down content and the user seeks a Keep-Up Relief, Person A would sue Intermediary X for its decision to take down Person A’s post. A court cannot logically grant relief without: (i) acknowledging that Intermediary X is not neutral, in which case it really is more like a newspaper and should be liable for its moderation decision; and (ii) going against the protection for voluntary moderation expressly provided in the Intermediary Guidelines; and/or (iii) engaging in the sort of constitutional and interpretative gymnastics that the Sanjay Hedge case involves. All this leaves the efficacy of the Rule 4(8) Keep-Up Relief at the mercy of large social media companies, and their internal calculus as to whether offering users such recourse will garner them goodwill (see Facebook’s Oversight Board).

Conclusion

The problem the government sought to address with the introduction of the Intermediary Guidelines is a real one. Large social media companies have unbridled power over what users see online at a time when we increasingly live our lives on the internet. This problem cannot be solved unless regulation accepts two significant realities, (i) that intermediary immunity remains central to incentivising intermediaries to moderate content and protecting users against horizontal censorship; and (ii) the current moderation procedures employed by platforms lack transparency, accountability, legal certainty, and disproportionately impact marginalised communities.

By relying solely on the structures of intermediary immunity, the Intermediary Guidelines demonstrates a singular lack of creativity when it comes to regulating online platforms. One alternative approach would be a separate statute with certain minimum standards of conduct for intermediaries (no easy task, but at least one that begins with an acceptance of the problems that need to be solved). As a result, the new Guidelines not only fail to provide users with efficacious remedies to either take down or keep up online content, but it perpetuates the status quo where online platforms are free to exercise arbitrary and dominating power over Indian citizens – with the only meaningful regulatory intervention occurring through government blocking of content when platforms fail to toe the government line.   

The author is grateful to Praharsh Johorey for his comments on the draft of this post.

Intermediary Guidelines and the Digital Public Sphere: Tracing first originators

The previous post (here) set out how social media companies are key facilitators of public discourse, and structure the digital public sphere. The Intermediary Guidelines distinguish between ordinary intermediaries and ‘Significant Social Media Intermediaries’ (“SSMIs”) and Rule 4 sets out “due diligence” obligations that SSMIs must satisfy to avail of legal immunity for content shared on their platforms. In other words, a violation of Rule 4 of the Intermediary Guidelines does not itself impose liability on SSMIs, but it exposes them to a significant risk of liability given the large volumes of content being transacted on their platforms.

This post examines the requirement that SSMIs providing messaging services identify the “first originator” of specific content on their platforms pursuant to judicial or government orders. I begin by setting out the content of the requirement. Next, I briefly examine the role of secure communications and anonymity under the Indian Constitution. I then set out the technical proposals as to how a first originator may be identified and finally evaluate whether Rule 4(2) would survive constitutional scrutiny.

The ‘Traceability’ Requirement

Rule 4(2) obligates SSMIs that are “providing services in the nature of messaging” (think WhatsApp, Signal, Telegram, and iMessage) to “enable the identification of the first originator of the information on its computer resource”. SSMIs are required to comply with this obligation in two situations;

(1) where a judicial order is passed; or

(2) where an order is passed under Section 69 of the IT Act and the Information Technology (Procedure and Safeguards for interception, monitoring and decryption of information) Rules, 2009 (“IT Decryption Rules”).

The IT Act defines an “originator” as anybody who generates, transmits, or stores content. The effect of the rule is to enable the identification of the first user profile on a computer resource to generate, transmit or store a specific piece of information. While Rule 4(2) postulates a judicial order ordering identification, it does not mandate it. Orders under Section 69 are passed by senior civil servants, so there is no meaningful check on executive power. Further, the Union Government insists this is a measure to fight illegal content that has widespread reach; however, Rule 4(2) itself contains no threshold for ‘virality’ and could in principle apply to any content that was shared more than once. If there is more than one “originator”, there is de-facto a “first originator”

Rule 4(2) includes three safeguards and creates one legal presumption. First, an identification order may only be passed for the purposes of “prevention, detection, investigation, prosecution or punishment” of offences “related to” the sovereignty, integrity, or security of India, friendly relations with foreign states, public order, or the incitement of offences relating to any of these headings but also rape, sexually explicit material, or child sexual abuse. Second, an identification order cannot be passed where a less intrusive means to identify the first originator exists. Third, no SSMI is required to disclose the “contents of any electronic message or any other information related to the first originator, or any information related to its other users

Finally, Rule 4(2) also states that if the first originator of content on the messaging platform is located outside India, the first originator within India (i.e., the first person who generates, stores, or transmits the content in India) “shall be deemed” to be the first originator with respect to that content.

Privacy and Proportionality in India

In the last post we examined how social media companies constitute the digital public sphere. This is borne out empirically in the case of messaging platforms as well. In a recent study conducted by the Reuters Institute and the University of Oxford, 52% of Indian respondents reported getting their news via WhatsApp. 60% clicked on news links, 46% posted or shared news on the platform, and 39% took part in group or private discussions. Messaging platforms facilitate public discourse and allow citizens to shape public opinion, perhaps best demonstrated by the high levels of political content on these platforms. Anonymity and security thus form crucial barriers against political speech being chilled.

Messaging platforms also allow individuals to share constitutionally protected but socially stigmatised views, ensuring individual autonomy and dignity. It allows people to securely discover and express themselves, and effectively organise with other citizens to create centres of countervailing power. As the former UNHRC Special Rapporteur noted, being protected from the public gaze may allow citizens to discover and share ideas they may otherwise be persecuted for. “The ability to search the web, develop ideas and communicate securely may be the only way in which many can explore basic aspects of identity, such as one’s gender, religion, ethnicity, national origin or sexuality.” However, the security provided by privacy is especially fragile. Courts have recognised that where even the threat of surveillance exists without a remedy, there exists an interference with a citizen’s privacy.

Almost two decades ago, the Supreme Court in PUCL recognised that Indians have a constitutionally guaranteed right to communicate privately. In Puttaswamy,the Court articulated a vision of privacy grounded in individual autonomy that interacted and enabled the enjoyment of other rights guaranteed by the Constitution, most notably the right to freely and privately hold and express opinions, and associate with other citizens (¶412). In other words, privacy forms a necessary foundation to the enjoyment of the rights and privileges guaranteed by the Constitution. The Indian Constitution thus guarantees private and secure communications to both protect individual autonomy and facilitate democratic self-governance.   

Any infringement on a citizen’s right to communicate privately must therefore satisfy the test of proportionality: (1) the infringing measure must pursue a legitimate state aim; (2) the measure must substantially further the state aim; (3) the measure must be the least restrictive option amongst equally effective alternatives; and (4) the measure must not have a disproportionate impact on rights holders.

Rulemaking power

Before we examine the issue of privacy and encrypted messages, there exist a preliminary issue of the very power to frame such a rule. The prefatory text to the Intermediary Guidelines notes that the Guidelines are issued under the powers granted to the Union Government by Sections 87(2)(z) and 87(2)(zg) of the IT Act. The former grants the Union Government power to frame web-site blocking rules and the latter grants power to frame rules to regulate the immunity granted to intermediaries. In short, neither of the sub-clauses relate to monitoring or tracing content on computer networks. The government may argue that Rule 4(2) forms legitimate regulation of intermediary immunity, but this is belied by the fact that the IT Act itself grants the government to monitor and decrypt content in a separate and independent provision, namely Section 69. Section 69 has its own rule-making provision, Section 87(2)(y), and the government has already framed the IT Decryption Rules under this section.   

Operationalising ‘Traceability’

There exists a gap between Rule 4(2) mandating SSMIs to identify the first originator and the platforms being able to do so – and this is because all major messaging platforms such as WhatsApp, iMessage, and Signal are end-to-end encrypted. This means even if the messages on these platforms were monitored or intercepted, the messages would first need to be decrypted using a decryption key for their contents to be read. It is important to understand that the decryption key is stored on the user’s devices and not with platforms, so WhatsApp could not reveal the contents of messages even if it wanted to do so to comply with Rule 4(2). Further, the decryption key is unique between users, and changes over time. So even if a decryption key were acquired, it would reveal the contents of one chat for the limited period that the specific decryption key was used.

Understanding this, the impossibility of the task demanded of SSMIs comes into picture. How does a messaging platform trace a piece of content across thousands, potentially millions of chats (none of which it possesses decryption keys for) to locate the first originator? This tension is borne out in the IT Decryption Rules drafted in 2009. The Rules define “decryption assistance” as “allow access, to the extent possible, to encrypted information”. This is further buttressed by Rule 13(3) of the IT Decryption Rules, which states that “Any direction of decryption of information issued under rule 3 to intermediary shall be limited to the extent the information is encrypted by the intermediary or the intermediary has control over the decryption key.”      

Given that Rule 4(2) of the Intermediary Guidelines expressly states that an order to identify a first originator shall be “as per” the IT Decryption Rules, it may plausibly be argued that an identification order under Rule 4(2) would simply not apply to a platform which does not possess the decryption key. In fact, Facebook has expressly contended that a ‘best efforts’ obligation to assist the government does not contemplate a platform radically modifying its platform to allow the government to trace originators. However, while the Union Government states that it does not want to break end-to-end encryption, it has insisted that platforms are obligated to modify their functionality to enable tracing first originators.

There have been two prominent proposals on how traceability may be achieved without breaking end-to-end encryption. The first proposal was mooted by one Professor Kamakoti and is discussed in Aditi Agrawal’s piece (here). More recently however, anonymous officials from the Ministry of Electronics and IT have argued that a “hash constant” may be used to identify originators.

Hashes

The idea of a hash is to assign every distinct message a unique hash identifier. Briefly, if User P sends the message “I plan to undermine the Indian Government” to User Q, the message is assigned a hash identifier, for simplicity say the identifier is ‘52’. User Q now forwards the message to Users R, S, and T, who go on to send it to hundreds or thousands more until it reaches User M who believes the message to be illegal. Now, an investigative agency can ask the platform to run a search against all messages having the identifier 52, to find when it first appeared – with User P.

In her piece, Aditi notes that this may not work as platforms generate hashes based on: (1) the contents of the messages; and (2) the keys between users, which are constantly changing. Therefore, the message between User P and User R will have a different hash from the same message sent from User P to User T. This means that any one hash would be of limited value as it would disclose identical messages, between two users, sent when a specific decryption key was in use. All other identical messages would have different hashes.

Ironically, if this is not the case, the consequences are far grimmer. Because hashing ties an identifiable value to the contentsof a message (e.g., 52=I plan to undermine the Indian Government), the platform, and consequently the government, could know every user on the platform who has that message on their phone. This is contrary to Rule 4(2) itself, which states that SSMIs shall not be required to disclose the contentsof the message or any information related to other users. (Sidebar | it is entirely conceivable that over time the government shifts from searching for hashes that equal “I plan to undermine the Indian State” to hashes that equal “I don’t like the Indian Government.”)

Constitutional scrutiny

The proportionality test is a cumulative one, and for the sake of brevity I only highlight the most striking issues with Rule 4(2). First, the State bears the onus of demonstrating that the measure (tracing first originators) furthers its stated aims (preventing the incitement of offences against the integrity of India, sexually explicit material etc.). The law recognises that nearly any measure may potentially be useful or desirable for governments to achieve the cessation of crime and ideally, requires that the State demonstrate the measure in question is “necessary” to achieve its stated aims.

Why first originators?

It is unclear how tracing the first originator assists the State in achieving its aims. We cannot assume that the first originator createdthe content. This logic is defeated as Rule 4(2) cannot cover cross-posting; a twitter user could create and upload a video that is subsequently downloaded and shared on WhatsApp – the first originator is not the creator. Rule 4(2) itself rejects the creation rationale by acknowledging that content may be created outside India but sent to India – creating a ‘first receiver’ of sorts. Now if we were to argue that this ‘first receiver’ is facilitating the spread of the illegal content in India, how do we justify overlooking other originators for domestically sourced content? Imagine I send “illegal” content to User X, who forwards it to a group with several thousand users – who is facilitating the spread of illegal content and whom should the law be more focussed on identifying, and how should liability be apportioned between User X and me?   

Further, as Nandan Kamat noted, secondary liability for repeating and disseminating speech varies depending on the offence (public order, defamation, etc.) In some regimes, each re-publication (forward) constitutes a wholly new publication while in other cases liability for repeating content is minimal. The level of due diligence a speaker exercises before sharing content varies widely based on the content and the platform. Context is also crucial. Imagine illegal content is circulating on Platform A and Platform B. On Platform A, the content is being used to incite violence but on Platform B the content is being used to generate counter-speech against violence. As Rule 4(2) states that the contents of the messages cannot be disclosed, how do we differentiate between the originator on the two platforms? The first originator on Platform B may provide context by displaying the contents of her messages, but she should not have to, she should not even be implicated in a criminal proceeding for making constitutionally protected speech. All in all, Rule 4(2) is a blunt instrument most likely to limit the spread of both legal and illegal content by creating a massive chilling effect on users.

Are first originators the first?

Another major issue is that there is a distinction between proving that content first originated from a particular device or user profile and proving that the person who owns the device sent the content. The possibilities for manipulation are endless, ranging from virtual sim-cars linked to foreign numbers that are sold on all major app-stores for as little as ₹100 to picking up somebody’s phone or acquiring remote access privileges. This manipulability and arbitrariness are aggravated by the fact that Rule 4(2) is limited to a single SSMI’s platform (excluding cross platform posting) and the geographic restrictions.

Imagine a piece of “illegal” content is widely circulating on WhatApp (or even better, a smaller messaging service falling below the threshold of an SSMI). User X using a virtual (foreign) sim cross posts it to Telegram by sending it to his mother, and then uses her phone to forward it back to User X’s Indian Telegram. User X now forwards it to a Telegram group with 5,000 users. User X’s mother is the first originator. Therefore, how far the identity of the ‘first originators’ user profile or device can aid in criminal prosecution or curbing misinformation is highly questionable.

Alternative measures

The State must also demonstrate that tracing the first originator is the least intrusive method of achieving its aim among effective alternatives. While there seems to exist some uncertainty within the Union Government how the identification of first originators will be operationalised, the present proposals are particularly intrusive and risk the privacy of other users. An order under the IT Decryption Rules does not require judicial authorisation, and no remedy is provided to users. Because the government itself is a substantial actor on messaging platforms, the necessary independence of identification orders has not been secured. While Rule 4(2) prohibits an identification order from being passed where less intrusive measures exist, there exists no legal structure to guarantee or even scrutinise an incompetent or mala fide claim by an investigative agency that this is actually the case. Further, if hashing were to be employed, basic safeguards such as data retention and expiry are not in place – how long can a hash identifier associated with content be active?

This leaves the Government with a high burden to demonstrate that Rule 4(2) achieves something other measures simply cannot. This is undermined by the fact that mobile platforms already provide the Government a host of ‘basic subscriber data’ allowing the Government to trace users. For example, under the Criminal Procedure Code the Government already requests platforms to provide users’ phone numbers, names, device info, app version, start and end times, last connection, IP and email addressed and web-client data. The Government also has other legal powers such as wiretapping, geo-location, and physical surveillance of suspects. Further, the Government can also use human intelligence to infiltrate and track users on messaging platforms, as reporters have done to investigate the organised spread of misinformation. In summary, the Government has a host of alternative investigative tools while citizens rely almost exclusively on encryption to protect their communications.          

Conclusion

Encrypted communications are a thorny issue world over and law enforcement agencies are lobbying hard to access user messages. But given the importance of encrypted messaging to the autonomy and dignity of citizens, and its centrality to shaping public discourse in India, any restrictions must be strictly scrutinised from the lenses of the rule of law and due process to address the power imbalances that exist between citizens and the State. How Rule 4(2) will be operationalised will have a substantial bearing on its legality. However, as it stands today, the identification of first originators requires weakening the privacy of millions of Indian users to ineptly trace a few potentially bad actors; actors that we are unclear whether we should, or how we will, ultimately hold guilty.    

Intermediary Guidelines and the Digital Public Sphere: Automated Filtering

In a previous post (here), I had argued that focusing on intermediary liability to regulate social media companies would likely weaken free speech and further entrench the power of large technology companies. However, with the adoption of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary Guidelines”), the government has adopted a liability centred approach – so let us take stock.

As the name suggests, the Intermediary Guidelines traverse well beyond the regulation of online intermediaries and raise several issues as discussed by the IFF (here and here) and the SFLC (here). The Guidelines are currently subject to a comprehensive legal challenge before the High Court of Kerala. At their core, the Guidelines change the obligations imposed on online intermediaries in ways that may fundamentally alter the public sphere. This post focusses on the obligation of social media companies to use ‘automated filtering mechanisms’ to weed out ‘illegal’ content.      

The Context

Content on the internet typically concerns three parties: (1) ‘content originators’ who post or share content; (2) online intermediaries who provide a platform for users to share content on; and (3) ‘content recipients’ who view the content posted by content originators. Conceptually, it is important to distinguish between websites that post their own content (a news organisations website), and online intermediaries that merely provide a platform (WordPress, which allows bloggers and readers to interact but has nothing to do with the content of individual blogs). When (inevitably) the material posted by a content originator violates the law, it raises the question of whether the online intermediary should be held secondarily liable for its role in spreading the illegal content.

Section 79(1) of the IT Act states that an online intermediary shall not be liable for this facilitative role. This ensures that intermediaries do not have to scrutinise each user post for potential illegality/liability that may be foisted on them, ensuring the free flow of user content on platforms such as Facebook and Twitter. However, given the wide reach of the internet, governments also typically want intermediaries to act as gatekeepers against some of the worst forms of content. As a result, in India, the immunity offered to intermediaries by Section 79(1) requires intermediaries to satisfy certain obligations. Crucially, under Section 79(2)(c), online intermediary must “observe due diligence”. This is where the Intermediary Guidelines become relevant, as Rules 3 and 4 of the Guidelines prescribe the ‘due diligence’ obligations of online intermediaries. In other words, if intermediaries want to avail of the legal immunity for any illegal content on their platforms, they must satisfy the conditions of Rule 3 and 4 of the Intermediary Guidelines.   

Scheme of the Guidelines

Rules 3 and 4 of the Intermediary Guidelines impose a system of differentiated obligations for ordinary online intermediaries and ‘Significant Social Media Intermediaries’ (“SSMIs”). As expected, the latter have significantly more onerous responsibilities to fulfill to avail of legal immunity. While this post focuses solely on SSMIs, it is worth spending a moment on this distinction. The Guidelines define an SSMI as an intermediary which: (i) has more “registered users in India” than a limit set by the Union Government; and (ii) primarily or solely enables online interactions between users and allows them to access, upload, and share content. The Union Government has since stated that the threshold for an SSMI is 5,000,000 “registered users in India”.

As a practical issue, it is unclear exactly how “registered users in India” will be calculated. Geographic locations are easily spoofed on the internet and the requirement is bound to create a few borderline cases involving some arithmetic gymnastics to avoid being classified as a SSMI. To add to this, platforms such as Signal and Telegram do not release country specific userbase data.

Taking a step back, it is also worth examining the trend to impose additional monitoring and filtering responsibilities on large social media companies. The increased burden on SSMIs to moderate their platforms is a tacit admission that these platforms form the bedrock of public discourse or a ‘digital public sphere’. In addition to cat videos, these platforms facilitate communication between citizens and the political centre of self-governance. Thus, these platforms aid democratic legitimating by allowing citizens to participate and shape public opinion. Suspending a citizen’s social media account is the modern-day equivalent of gagging them at a town hall. Simply put, SSMIs perform a very public function in our democracy and thus their regulation must balance the government interests in preventing harm in the public sphere (e.g., defamatory, or presumptively illegal content), with the free expression rights of internet users (included here is the right to access/receive information).  

Proactive Filtering Requirement

Rule 4 sets out the “due diligence” obligations of SSMIs. Rule 4(4) states that an SSMI:

shall endeavour to deploy technology-based measures, including automated tools or other mechanisms to proactively identify information that depicts any act or simulation in any form depicting rape, child sexual abuse or conduct, whether explicit or implicit, or any information which is exactly identical in content to information that has previously been removed or access to which has been disabled on the computer resource of such intermediary under clause (d) of sub-rule (1) of rule 3, and shall display a notice to any user attempting to access such information stating that such information has been identified by the intermediary under the categories referred to in this sub-rule.

The obligation in Rule 4(4) thus creates a best efforts obligation on SSMIs to utilise automated tools to proactively identify two classes of content. First, content that explicitly or implicitly depicts rape or child sexual abuse, and second, content that is exactly identical to content that has been taken down pursuant to Rule 3(1)(d). Under Rule 3(1)(d), content may be taken down pursuant to a court order or a government order (as noted here, there are virtually no limits on what the government may block). Although the provision does not expressly require an intermediary to block access to a page identified as hosting such content, absent a clear government clarification that users will still be permitted to view the flagged content, we may presume that the intermediary’s notice flagging the content will replace the web-page’s actual content – effectively blocking the content. (Sidebar | As takedowns under court or government orders themselves are haphazard and regularly not disclosed to the public, it is unclear what “categories” the user-facing notice will use, drastically reducing its usefulness as a transparency aid.)

Overcompliance and Monitoring

Rule 4(4) provides intermediaries a choice, they must either monitor their platforms for select types of illegal content and replace it with red-flag, or alternatively, they can forgo the legal immunity offered by Section 79(1) and risk being held secondarily liable for facilitating the spread of illegal content. Despite the musings of certain commentators, the impact of giving intermediaries such a choice should be obvious. As Jack Balkin notes, this approach ‘raises problems of collateral censorship and digital prior restraint.’ In other words, conditioning legal immunity on the effectiveness of a platform’s monitoring and takedown of illegal content is bound to make platforms overly cautious. They are likely to takedown content that could potentially be illegal but may not necessarily be so if adjudicated upon. As Balkin notes, this phenomenon is inherent to systems of intermediary liability as intermediaries have no incentives to protect the speech of unknown third-party users over their own coffers.

The result is that intermediaries may restrict a user’s post purely to avail the legal immunity provided by Section 79(1) – because they do not want to take the risk that if the post is later found to be illegal and they had failed to take it down, they could be held liable for disseminating it. Crucially, an intermediary may takedown/block speech that a user could tenably claim is constitutionally protected speech, but the user’s claim does not sufficiently alter the risk calculus of the intermediary, which operates under the outsized threat of liability. This problem is aggravated by the oddity that users do not have free speech rights vis-à-vis online platforms (private companies) yet these platforms undeniably constitute part of the digital public sphere.

To avoid this very problem, the European Union expressly prohibits imposing a ‘general monitoring obligation’ on intermediaries to weed out illegal activity on their platforms (see Art. 15 E-Commerce Directive). In the context of requiring intermediaries to weed out copyright infringing material from their platforms, the European Court of Justice ruled as far back as 2012 that a general monitoring obligation was incompatible with the free speech rights of users as it may lead to legal content being caught in the dragnet of a web-filter. The court held that a general monitoring obligation exists where intermediaries had to install filters that: (i) were targeted at user content; (ii) applied indiscriminately to all users; (iii) were installed as a preventive measure; (iv) at the sole expense of the intermediary; and (v) for an unlimited period of time. Needless to say, Rule 4(4) ticks all the boxes of an unlawful general monitoring obligation.

Using Automated Filters

The use of automated systems is not new. Most large social media platforms already voluntarily use a host of automated tools to filter content. However, these are by no means perfect. Between Facebook’s takedown of iconic war photography, to Twitter’s suspension of an Indian lawyer’s account over the use of August Landmesser’s photo defying the Nazi salute – the mistakes of automated systems are well documented. Put simply, at their present state of development, automated systems are poor at evaluating cultural context, irony, or the critical analysis necessary to discern between illegal and legal content. Now consider the types of content Rule 4(4) requires such automated tools to block, ‘explicit or implicit depictions of rape and child sexual abuse’. Automated systems are unlikely to accurately determine the various layers of nuance associated with such content which may range from actual footage of child sex abuse to a critical commentary on sexual violence.

This issue is exponentially aggravated when the second target for automated filters is considered. Content may be taken down under Rule 3(1)(d) for a host of legal and legal but unconstitutional reasons. A court may pass an order to takedown defamatory content under Rule 3(1)(d). The Government may also pass an overbroad order blocking large swathes of content under Rule 3(1)(d). The effect is to create an ever-growing database of illegal content (infinitely more complex than even depictions of rape or child sex abuse) that automated systems must continually weed out. Furthermore, under Rule 3(1)(d) specific URLs are restricted. If an automated system is unable to discern exactly what content on that web-page was illegal, there exists a significant chance of collateral censorship as all content on that originally blocked page may be flagged as illegal and automatically blocked going forward. Finally, there are no safeguards to ensure that once content is no longer restricted under Rule 3(1)(b) (if a court modifies or the government withdraws an order), automated systems are immediately turned off.

Although Rule 4(4) uses the term “proactively”, it is unclear whether SSMI’s will be obligated to restrict content prior to publication even. A filtering system that restricts content prior to publication fundamentally privileges the interests in favour of restraining speech. In other words, it treats all speech identified by the filter as presumptively illegal, contrary to settled free speech doctrine. Lastly, even if the content is published, a user must be given the right to contest the application of the filter before it is taken down. While Rule 4(8) of the Intermediary Guidelines does postulate an ex-ante dispute resolution mechanism, it does not apply to content taken down pursuant to the automatic filtering under Rule 4(4). This is amplified when the relevance of the content is time sensitive, and no content-recipient has been identifiably injured. Famously, in Shreya Singhal, the Supreme Court struck down a requirement that intermediaries takedown content at the behest of a private complaint absent judicial adjudication. Where this leaves a requirement that intermediaries takedown content even prior to a private complaint will have to be seen.

Privacy

The use of automated filters also raises issues surrounding user privacy. Imposing a general monitoring obligation on intermediaries to constantly weed out “illegal” content requires them to conduct an ongoing analysis on all user content posted on their platforms. This exercise is likely to lead to a large dataset that links user profiles to any “illegal” content posted by them. Consider a user profile which repeatedly posted content that violated a ‘depictions of rape’ filter or ‘farmer protests’ filter – the intermediary would be in possession of this information which may: (i) be requisitioned by the government; or (ii) be hacked or leaked and made available to the public devoid of any context.

Parchment Barriers

The Union Government is not unaware of these harms, and Rule 4(4) includes three safeguards aimed at preventing these issues. First, the measures taken by intermediaries must be “proportionate” and must consider the ‘interests of free speech and privacy of users.’ Second, intermediaries shall implement “mechanisms of human oversight … including a periodic review of any automated tools deployed”. Lastly, the intermediary “shall evaluate the automated tools having regard to the accuracy and fairness of such tools, the propensity for bias and discrimination in such tools, and the impact on privacy”.

On paper, these are excellent considerations to have when deciding whether to use automated filtering. However, as regulatory text, it lacks the necessary specificity or enforceability to reign in the dangers of automated systems. None of the three safeguards provide any indication as to when an intermediary is in breach of them. How much oversight and review are necessary to maintain immunity? What is the level of efficacy the automated systems must achieve and what is a tolerable error rate? What forms of data collection for the purposes of such systems are impermissible? Additionally, the Guidelines and the IT Act fail to provide any form of regulatory oversight. There is no dedicated body to police these incredibly complicated systems being unleashed on Indian users, meaning that in the real world – compliance will be almost impossible to ensure on an ongoing basis.

Automated systems are not unregulatable. There exist several real world proposals on how to monitor such systems such as vetting the source code, black boxes, and perhaps most promisingly – ‘tinkering’. This involves systematically testing how such filters respond to sample content on an ongoing basis. However, such solutions require a regulatory framework and committed agencies. The safeguards set out in Rule 4(4) are more akin to parchment barriers – laudable on paper but easily circumventable by both intermediaries and the government in practice.

The so-called safeguards also raise the spectre of a more sinister threat that is now well-established in India’s legal system: that of ‘discriminatory legalism’. Simply put, the legal uncertainty and lack of a dedicated and independent agency to oversee SSMI filtering opens the door for the government to selectively prosecute SSMIs for either violating the filtering obligation or violating the safeguards. For example, if the SSMI does not takedown content unfavourable to the ruling party, a violation of the web-filtering may be alleged, and if the SSMI takes down content favourable to the ruling party, a violation of the safeguards may be alleged.  

Conclusion

This is the first post of a series examining the impact of the new Intermediary Guidelines on the digital public sphere in India. Requiring SSMIs to take an increased role in content moderation of public discourse is not an unreasonable demand. The deregulatory atmosphere in which online intermediaries emerged means that private companies now perform the core democratic function of facilitating public discourse and regulation must recognise this. The large volume of content on these platforms also means that the use of automated filters is inevitable.

However, this set of posts critically examines whether the form of regulation adopted by the Intermediary Guidelines is the best way of ensuring a vibrant digital public sphere. Making intermediaries’ legal immunity conditional on them ceaselessly monitoring content fundamentally alters their risk calculus towards content takedown. The lack of well-conceived regulatory framework to address the risks of automated filtering by social media companies leaves Indian citizens more at the mercy of large tech companies and government interference than ever. A diametrically opposite, but equally feasible approach suggested by Martin Husovec is to fine intermediaries for over-zealously taking down content. This incentivises intermediaries to invest in improving their content removal systems, as opposed to India’s approach which, at best, allows the social cost of lost speech to go unaddressed – and at worst, incentivises intermediaries to takedown more content than ever.

Contesting State Power

We are firmly in the midst of a new narrative being written. A new narrative that touches all aspects of Indian society, from the historical to the sociological, informational, and inevitably, the constitutional. This post examines one proposition of our new Indian narrative – that the power exercised by a validly elected government should not be contested. At its core, this position consists of two elements: (i) the actions of such a government represent the will of the people; and (ii) when in power, the elected representatives of such a government claim sole authorship over the Indian polity – other groups will have their chance at authorship (if) and when they are elected.

In this post, I question these twin assumptions from the perspective or republican self-government. I argue that for a State to be legitimate, it must create a system of popular control where ‘the people’ are the ultimate arbiters of the efficacy of a government. Elections and ‘the will of the people’ are insufficient controls. Rather, what is required is a system of contestation on every site of public-decision making. I seek to demonstrate how despite elections, contestation by ‘the people’ is not an inconvenience to be tolerated, but a vital control on State power that ensures the continued legitimacy of the State as a whole. I end by briefly commenting on the outer limits of contestation, the case of unjust laws and the fraying legitimacy of the State.

The role of the State

States exist to coordinate a community’s behaviour and achieve a better life for the community’s members (e.g. we all drive on the same side of the road, allowing us to drive more safely). At its most basic, a State may protect its members from external threats. People band together on a patch of land for geo-strategic reasons and determine who is worthy of protection. Long before the Indian Constitution talks about rights or principles, it talks land, territory, and citizenship (Art. 1 to 11). Once these primal concerns are addressed, members begin to fine tune their State to better their lives vis-à-vis each other. See Articles in the Indian Constitution attacking centres of dominating private power such as gender, caste, and religion.

To achieve these goals, the State must be empowered to take action. As citizens, we want the State to have the power to protect our borders, we want the State to exercise coercive power to dismantle the inequalities of gender, caste, and religion. However, empowering the State raises a parallel concern – will the State itself become a source of unfreedom? State power when exercised for private or factional interests can be detrimental to the members of a political community. This dilemma lies at the heart of constitutional law. As James Madison summed it up, “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself” (Federalist 51). Madison responds to the dilemma in his very next line – “A dependence on the people, is no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.

Before addressing ‘the people’, a word on ‘auxiliary precautions’: these are design choices to restrain State power and thus lower the risk of it being manipulated. The two most pertinent being the rule of law and the dispersal of power. Legislating in a principled and general (not particularistic) manner and ensuring laws apply equally to all guards against State power being used in a factional or private interest. This is why selective (‘political’) prosecutions or discriminatory legislation are intuitively inimical to us as citizens, because the coercive power of ‘our’ State is being manipulated. Further, States typically disperse power to limit the ability of any one authority drastically restricting a citizen’s freedom. See checks and balances across branches of government, bicameralism, and federalism as other classic examples of breaking up power.   

Control by ‘the people’

However, as Madison noted, ‘the people’ form the primary control on government. The ability of citizens (as a collective) to continually ensure that the coercive power of the State is being employed for their benefit forms a background justification for tolerating the authority of the State. In other words, the State must prove to be acting in the interests of citizens, else it must be abolished.

As Akhil Amar notes, long before the American second amendment protected individual gun enthusiasts, it enshrined a distrust of large standing armies who may not act in the citizens’ interests (see Myanmar in 2021). The American founders firmly believed that a real republic should be guarded by its own citizens, far more reliable than a motley band of outsiders armed to the teeth. Vesting control with citizens means granting them the power to “alter or abolish the established Constitution, whenever they find it inconsistent with their happiness”. A blog post is not the place to discuss the varying textures of the Indian constitution, but our framers were not blind to the need the State to track the well-being of citizens; see the adoption of universal suffrage, parliamentary accountability, and the nexus between the inviolable right of individuals to approach courts (Art. 32), and the power of courts to strike down a broad range of State action (Art. 12 & 13).

The other side of this coin is that where citizens are controlling the State to act in their interests, citizens have a corresponding obligation to obey its general authority (more on this later). But how do we determine whether the State is acting in the interests of the citizens, especially as reasonable citizens can disagree over what constitutes the citizen’s interests in a plural society? And does obeying the general authority of the State mean accepting its every decision?

Contesting Specific Actions

States represent a compromise between the individual and the community. Individual agency sometimes must give way to facilitate coordination (e.g. for all of us to drive safely, I forgo the right to drive on whichever side of the road I choose). However, correspondingly, the State must recognise the claims of individual and groups to autonomy and opinions. One understanding of how this achieved is consent to government action – individuals consent to their autonomy being limited on specific sites. But as Philip Pettit notes,

If explicit individual consent is required, non-arbitrariness in public decision-making becomes an inaccessible idea. If implicit consent is thought to be enough, and an absence of protest is taken as evidence of implicit consent, then non-arbitrariness in public decision making becomes an idea so accessible as to be empty.”      

Philip Pettit, ‘Republicanism: A Theory of Freedom and Government’ (1997).

Within our democratic framework, one solution to this quandary is contestation. More specifically, when citizens or groups disagree with specific actions of a State (usually through its elected government), they have a right to contest this action. At every site of public-decision making, individuals and groups must be capable of raising questions as to whether government action involves the appropriate considerations to further the citizen’s interests. Although elections are a form of contestation, elections alone represent a far too intermittent and imperfect method of popular control (especially in the age of powerful political parties and an anti-defection regime). Thus, elections are not the exclusive form of citizen control. Transparency in government decision making (facilitative), the right to information (facilitative), public consultations as part of Environmental Impact Assessments, jury trials (before they were abandoned), challenging State action in courts, parliamentary sub-committees, parliamentary debate itself, and finally public protest are all institutionalised forms of contestation that ensure State power is continually used for ‘the people’. As Pettit notes,

The self-ruling demos or people may often run on automatic pilot, allowing public-decision making to materialize under more or less unexamined routines. But what makes them self-ruling is the fact that they are not exposed willy-nilly to that pattern of decision making: they are able to contest decisions at will and, if the contestation establishes a mismatch with their relevant interests or opinions, able to force an amendment.”

Philip Pettit, ‘Republicanism: A Theory of Freedom and Government’ (1997).

(Unfortunately, the systemic weakness of many of these forms of contestation has left Indian citizens with few options to retain control over the government other than taking to the streets.)

This stands in stark contrast to populist reasoning that the elected representatives are the sole authors of a nation’s fate. What emerges is system where an elected government has a mandate to act in the citizens best interests, and individual and groups operating through various inflection points within our constitutional democracy keep them honest to this goal. The process of contestation attempts to bridge the all-important gap between individual/group autonomy and the needs of the collective by arriving at a compromise where neither is unduly subordinated. Perfect consensus may not always emerge, but the process of contestation ensures that an individual’s/group’s autonomy is not supressed for the sole reason that its views are at variance with an elected government or ‘popular will’. Rather, compromise is achieved based on publicly-defensible norms.

How should the State be contested?

Recall that where a State is legitimate and generally pursues the citizens interests, citizens have a corresponding obligation to obey the State. How do we square this with the above discussed right of citizens to contest the actions of the State? Simply put, I can continue to respect my State’s general authority while still challenging the exercise of the State’s specific authority. The framers of our Constitution were all too conscious of this crucial distinction. For example, in explaining why the offence of sedition should be scrapped, Ananthasayaman Ayyangar distinguished ‘an attack on the government’ from ‘the entire State being overthrown’ (See Bhatia, ‘Offend, Shock and Disturb’). The former could never be criminalised because, in systems of self-government (which India was about to become), the people’s right to argue that government action was not in the interests of citizens is inherent and a vital control on State power. Based on this rationale, the bar for sedition is not even that seditious speech may lead to violence (this can be dealt with by ordinary criminal law), but rather that the speech must advocate the overthrow of the State itself – i.e. contest its general authority.

It follows that even beyond the institutionally recognised methods of contestation, a citizen’s right to contest specific actions of elected governments continues insofar as they do not contest the general authority of the State itself. This may include breaking a law citizens view as unjust. For example, Pettit notes that the member of a civil disobedience movement may break a perceivedly unjust law but still accept the authority of the State to prosecute and the courts to judge them. When the authority of the State is divided into general and specific, and contestation is understood not as an inconvenience, but as inherent to self-government, the hollowness of a particular grammar of patriotism is laid bare – most notably the use of the term ‘anti-national’ to those critical of a government, or the flagrant use of the sedition provision. 

Conclusion

To recap, in a system of self-government, citizen control over State power forms the background justification for obeying the State’s laws. Viewed from the perspective of autonomy, we are willing to tolerate our loss of autonomy if the State (through its coordinating power) grants us even more autonomy by furthering our interests. In addition to the rule of law and dispersal of power, citizen control is not achieved not solely by electing representatives, but rather through a system of public decision making that allows citizens to contest the specific authority of the State on various sites. Crucially, elections are not an infinite mandate to exercise the coercive power of the State but a conditional power. At any point, the demos may rise up and contest. Where citizens do contest, they may do so through institutional means or even by breaking the law and suffering the penalty. But in a legitimate State they must continue to respect general authority (i.e. not advocate the overthrow of the entire state).

This last point must be caveated given our present circumstances. The overall legitimacy of a State is always a matter of degree. It is therefore possible that that within a largely legitimate State, actions may be taken that “breach the conditions of legitimacy that the regime generally respects”. For example, Tarunabh Khaitan’s recent paper (here) distinguishes between actions that may ordinarily be taken by an elected government and actions that debase liberal democratic constitutionalism itself. Where the fabric of the State itself is changed to rob citizens of continued control, the State may lose a degree of legitimacy and should be prepared for challenges to its general authority.

Note: The intention of this post was solely limited to highlighting the contestatory tenets that underlie our system of self-government and rebutting arguments on the dispositive nature of elections. Readers interested in the comprehensive scholarly accounts of contestatory democracy and republican self-government may refer to: (i) Pettit, ‘Republicanism: A Theory of Freedom and Government’; (ii) Pettit, ‘On the People’s Terms’; (iii) and Raz, ‘The Morality of Freedom’ (on the political obligations of citizens).

Social Media & Intermediary Liability: Missing the Forest for the Trees?

Recent events have once again brought into focus the question of imposing legal liability on online intermediaries and, particularly social media companies. In the United States, Twitter’s decision to ‘flag’ President Trump’s tweet disparaging vote-by-mail procedures as inaccurate prompted the President to issue an executive order re-considering the qualified immunity granted to intermediaries (here). In India, Twitter voluntarily and independently ‘disabled’ two tweets by advocate Prashanth Bhushan upon the initiation of contempt proceedings against the lawyer (here). This, while India is currently in the process of amending its rules under the Information Technology Act (“IT Act”) regulating online intermediaries (the “Intermediary Guidelines”).

The need to shield online intermediaries from liability to protect freedom of expression on the internet is well established. India’s new regulation seeking to make intermediaries monitor and take-down content is a step back in this respect. But the proposed guidelines aside, in this post I argue that a regulatory focus on intermediary liability by the government ignores several larger structural issues with speech on the internet (especially on social media websites) and potentially hampers more robust and multi-faceted regulatory approaches. I begin by briefly setting out India’s intermediary regime (both existing and proposed) and the need to shield intermediaries from immunity. I then attempt to sketch out the role of large social media companies in structuring speech on the internet and how an undue focus on intermediary liability further empowers already powerful actors at the cost of internet consumers and free speech. Without going so far as ‘breaking up big tech’, I explore possibility regulatory measures that can counteract the power of social media companies over users’ speech.

Intermediary Immunity Grossly Simplified

Given the decentralised nature of the internet, online intermediaries have long been targets for legal liability for allegedly unlawful speech on the internet. Traditionally a “tort law principle of secondary liability for third party action” is applied against intermediaries. Simply put, a website may be sued for hosting unlawful content even though the website itself did not create or post the content (secondary liability), the unlawful content actually having been created and posted by an anonymous web-user (third party action or content).

Government’s however, quickly recognised that exposing intermediaries to this liability may make them extremely cautious and cause them to start deleting all third-party content that carries even a slight risk of legal liability. Not ideal for online business or free speech. Therefore, governments provided “immunity” or “safe harbour” to intermediaries except in narrowly defined situations. For example, Section 79 of the IT Act provides online intermediaries legal immunity for unlawful third party content if: (i) the content is merely temporarily stored or transmitted on the site; or (ii) if the intermediary takes down the content upon receiving “actual knowledge” of the unlawful content or upon being notified by the Government; or (iii) compliance with the Intermediary Guidelines more generally.

In an exceedingly rare moment of clarity, the Indian Supreme Court in Shreya Singhal held that online intermediaries could not be tasked with determining when content was legal or not, and “actual knowledge” meant a court order directing the take-down of unlawful content. In other words, intermediaries would only ever be subject to legal liability if a court of law directed them to take-down content and they still refused to do so. (Note: this makes Twitter’s “disabling” of Prashanth Bhushan’s tweets an entirely voluntary act as there existed no court order directing the take-down. What it says about Justice Arun Mishra asking Twitter why it had not taken down the tweet is best left to the reader’s imagination.)

Proposed Amendments

As the intermediary’s “safe harbour” or shield against liability for hosting third party content is dependent on compliance with the Intermediary Guidelines, the content of these guidelines is incredibly important. As the Software Freedom Law Centre has reported (here), India’s new Intermediary Guidelines make continued immunity contingent on several problematic conditions, namely: (i) mandatory upload filters; (ii) traceability; (iii) a local incorporation requirement; and (iv) a twenty-four hour take-down requirement. These requirements are undeniably problematic, cumulatively restricting, and chilling speech. For example, an upload filter would force intermediaries themselves to judge the legality of content before it is published (flying directly in the face of the reasoning in Shreya Singhal). Even worse, upload filters shift the burden on the speaker to justify why their speech is not unlawful, rather than requiring a person offended by the speech or the government to justify why the speech should be taken down. This effectively makes restricting speech the norm and free speech an exception to that norm.

The proposed amendments to the Intermediary Guidelines warrant alarm bells being raised and interested readers should go through SFLC’s report. However, the focus of this post is to explain why the government’s focus on intermediary liability itself is misguided.  

The Bigger Picture

The renewed political impetus to regulate intermediaries is a result of the new dual role of large internet companies, particularly social media companies. As Jack Balkin notes, large social media companies not only make available speech for our consumption but also curate the speech that we consume. For example, not only does Twitter allows a user to see the speech of millions of other users, but by selectively ranking, editing, and removing content Twitter also determines what speech a user sees and does not see. This second role of curation cannot be performed without the intermediary (e.g. Twitter) having its own substantive view on what speech is good speech and what speech is bad speech.

Social media companies often argue that they are content neutral, or that speech is tailored based on a user’s own interests. However, this is simply not bourne out in practice. For example, when President Trump stated that vote-by-mail ballots were unsafe, Twitter ‘flagged’ it as potentially misleading, but Facebook carried the President’s statement as is. Simply put, Twitter’s substantive view on speech in the context of elections was different from Facebook’s. Therefore, despite granting intermediaries immunity, the reality is that large intermediaries voluntarily perform an editorial (or curating) function that determine what speech should be on their platform on what speech should not. These are often referred to as a platform’s “community guidelines”.

This voluntary curating function coupled with the massive market share of existing social media companies raises a significant issue. With the internet presently structured around just two or three social media companies, the probability that an individual citizen’s substantive view on good and bad speech will diverge from the social media company’s view on speech is extremely high. The most obvious manifestation is when a website takes down what a user may see as legal content, or alternatively refuses to take down what a user may see as illegal content. To be clear, it is not desirable to have content taken down merely because it is objectionable to another internet user (this is why Shreya Singhal imposed the court order requirement). However, when the user’s dissatisfaction with the social media site’s view of good and bad speech is examined in light of the user’s inability to choose another social media site or participate in the framing of the “community guidelines”, the curating role of social media companies absent any legal regulation becomes problematic.

Another way to look at this issue is that large social media companies have effectively created bottlenecks for speech on the internet, of which they are the sole unregulated gatekeepers. Gatekeeper functions are performed by most publishers for example, a magazine may refuse to publish an author’s article because of the magazine’s political views. However, the essential role played by social media companies in facilitating speech on the internet and the tiny number of companies involved creates a huge asymmetry of power between internet users and social media companies where an internet user cannot migrate to another social media platform in the same way an author can find another magazine to publish in. If a user wishes to participate in speech on the internet, they must subject themselves to the social media company’s views on speech in the form of arbitrarily enforced community guidelines. For example, the German Federal Court recently ruled that Facebook users were faced with a “false choice” between handing over huge amounts of private data to Facebook or not using the company’s ubiquitous social media service (here). In other words, internet users cannot ‘choose not to use Facebook’ because of its centrality to speech on the internet. The same dependence is also true of downstream companies and people who rely on social media companies for certain services (e.g. app developers for Apple’s App Store or YouTube’s content creators). This imbalance of power and the often arbitrary actions of intermediaries themselves has created the impetus for government’s to step in and seek to impose new rules that would make the voluntary editorial function carried out by intermediaries more acceptable to the citizen’s (or government’s) substantive view on speech.

Lastly, a user’s legal recourse against intermediaries is extremely limited. For example, in 2019 Twitter disabled senior lawyer Sanjay Hegde’s Twitter account over: (i) the use of August Landmesser’s photo defying the Nazi salute; and (ii) retweeting a poem by a CPI (Marxist-Leninist) politician – incidentally the original tweet was not taken down by Twitter. Hegde took Twitter to court alleging a violation of his free speech rights and a breach of Twitter’s own community guidelines. Twitter argued that as a private entity it was not obligated to guarantee Article 19(1)(a) rights. While there may exist a case for a contractual breach of the community guidelines, the episode highlights how even where internet users have the means and know-how to challenge an intermediary’s voluntary curating function, the law is ill suited to ensure recourse.  

Meaningful Regulation

Recall that intermediaries have always been soft targets for regulating speech online because they represent entities that the law can identify, regulate, and penalise in the otherwise decentralised world of the internet. India’s proposed new Intermediary Guidelines seek to make intermediaries even easier to identify and regulate (a local incorporation requirement) and opens intermediaries up to legal liability if their view of speech does not comport to the government-imposed norm (upload filters). The problem with this approach from a free speech perspective is that using legal liability as a threat to force intermediaries to take greater responsibility for online expression will likely lead to the systematic over-removal of legitimate speech. For example, Twitter did not wait for a court order to remove Prashant Bhushan’s tweets, as it was legally entitled to do under the Shreya Singhal ruling. Irrespective of whether an intermediary’s community guidelines are lax or strict, the spectre of legal liability forces intermediaries to be extremely cautious and remove speech that may not be unlawful. Worse, the high cost of upload filters and local incorporation requirements automatically privilege large intermediaries such Facebook and Google over smaller companies. Therefore, a regulatory approach focussed on intermediary liability not only fails to address the power imbalance between online intermediaries and their users, it further empowers existing intermediaries and incentivises them to be more aggressive in their voluntary curating function.

Understanding the problem created user-dependence on social media companies to speak on the internet, but also recognising that weakening “safe harbour” for intermediary immunities may not be a cogent response, government regulation must be more creative. “Breaking up big data” has become an increasingly common demand amongst certain politicians. Without going into the merits of a government mandated break-up of companies such as Facebook, Google, and Amazon, less drastic steps may be possible. It is also important to recognise that the harms created by large online intermediaries are not identical. For example, Facebook and Twitter may act as bottlenecks for free speech on the internet. Amazon has been accused of using its dual-role as a producer and a sales-platform to discriminate against sales-partners. Apple has been accused of discriminating against app-developers prior to apps can be listed on the App Store (the only way developers can supply their apps to users). Charges have been levied against Google for rigging its page-rank system to ensure that competitor services do not appear in Google’s ubiquitous search results. These diverse harms will likely require individuated solutions beyond a blanket breakup of large internet companies (previous breakups of large telecommunications and steel companies have resulted in re-consolidation within a decade or two).

A regulatory response must first be able to identify where speech may be being stifled. Recognising that users are unable to migrate to alternative social media networks even when an intermediary takes down their speech without a court order, an European Digital Rights (“ERD”) position paper explicitly recommends “bottleneck power” (the ability to preserve and lock-in a user-base) as a competition law metric that online platforms should be judged by (here). This can help regulators understand when users are locked in to online speech eco-systems, resulting in online intermediaries having too much power.

To break down this power, both ERD and Balkin advocate “interoperability” as a vital step that can restore significant power to internet users. A simple form of interoperability would allow users to access social media platforms from a variety of alternate services. For example, a user can access Twitter from a third-party app (not the Twitter app). This third-party app can display tweets purely chronologically, or use a different algorithm than Twitter, allowing the user to escape Twitter’s speech curating function to a limited extent (Twitter’s ranking of tweets) and choose a third-party app that the user believes to be the most beneficial.

A more robust form of interoperability would insist on a set of common internet protocols that allow users to directly communicate between different internet platforms (e.g. a Facebook user could directly message a Twitter user). This may sound unthinkable at present, but such common standards exist for email. An internet user is free to choose between a variety of email services but is ensured that they can still mail users on other email services. As ERD notes, if I migrate from Yahoo to Gmail, I do not automatically lose all my friends, followers, or contacts, thus the threshold to migrate is low and user-dependence and lock in is mitigated. By allowing users to migrate between different social media companies easily, social media companies are incentivised to provide better services and users are free to choose a social media company best reflects their substantive view of speech and are not beholden to any one service’s “community guidelines”. For example, if I found my speech constantly falling foul of Facebook “community guidelines”, I would migrate to social media X but still be able to reach my erstwhile “friends”. This would also apply in reverse, if I felt that Facebook was not censoring content enough and I wanted an even more curated feed, I would migrate to social media Y with stricter “community guidelines”. In the long term, this would ensure more social media companies and continued interoperability (today would you leave your email service for a new service that does not allow you to send emails to users with Gmail or Yahoo or Hotmail accounts?).

It is important to note that internet companies have systematically resisted moves towards such forms of interoperability. For example, Twitter limits the number of users a third-party Twitter app can host. Neither Twitter, Facebook, or YouTube provide meaningful application programming interfaces (APIs) that would allow for a service that collates your Facebook, Twitter, and YouTube feeds. Apple openly uses a “walled garden” approach to push sales of additional Apple-only compatible hardware.

Lastly, governments should look to set up specialised tribunals or regulators that improve recourse for internet users against the actions of intermediaries. Rather than a user having to approach regular courts to allege a contractual breach of community guidelines by the intermediary, specialised tribunals offering quick and meaningful dispute resolution will also incentivise better intermediary behaviour. The online nature of these disputes is also an opportunity to potentially examine online-only dispute settlement mechanisms such as virtual tribunals or Lok Adalats.   

Conclusion

This post stemmed from two excellent articles written by Jack Balkin (here) and Lina Khan and David Pozen (here). Balkin’s initial approach was to suggest imposing fiduciary obligations on intermediaries to ensure intermediaries do not act arbitrarily or like “con-men” with respect to user data. As Khan and Pozen note, an approach that centres around the regulation of intermediaries ignores the larger realities of the internet eco-system within which intermediaries operate today. Large internet companies already owe fiduciary obligations to stockholders to maximise value, which is often done by a business model reliant on the spread of divisive, inflammatory content and eroding user privacy. For example, the New York Times reported on an individual spreading political disinformation purely to capitalise on Google ad-revenue (here). When we recognise that these social media companies also form the cornerstone of modern public discourse, the magnitude of the problem is put into perspective. As Khan and Pozen conclude, the business model matters, as do economic realities.

A regulatory approach and response that focuses entirely on whether intermediaries should be held liable for third party content is unlikely to address the harms stemming from the extreme user dependence on large social media sites. Recognising the key role social media companies play in curating speech on the internet and the outsized market share these companies possess – there is bound to be a mismatch between a user’s substantive view of speech and those available on the internet resulting in the stifling of potentially lawful speech. Recognising that users are increasingly locked in to a handful of social media eco-systems, regulation of speech on the internet should work towards dismantling the gatekeeping power of large social media companies and putting power back in the hands of individual speakers to choose platforms of their choice and reclaim public discourse.


The author is grateful to Shweta Reddy from the Centre for Internet and Society for her inputs on this post.

“Fake News” and the Constitution

As millions of migrant workers made their way from India’s cities back to their villages after the government announced a nation-wide ‘lockdown’, the Solicitor General of India informed the Supreme Court that the exodus was caused by “some fake/misleading news and social media” and sought a direction to prevent “fake and inaccurate reporting” (here). In Maharashtra, an order was passed under Section 144 of the Code of Criminal Procedure prohibiting the dissemination of information on social media that was ‘incorrect or distorted facts’ (here). And Kashmir’s new ‘Media Policy – 2020’ states that “Any fake news or any news inciting hatred or disturbing communal harmony shall be proceeded against under IPC/Cyber Laws” (here).

Phrases such as “incitement” and even “disturbing communal harmony” have a long and well-documented use in Indian law (for better or for worse). However, the above narrated incidents demonstrate a recent trend by the Indian government to try and restrict speech on the ground that it constitutes “fake news” (I use speech in the broadest possible term to include the press, broadcasting and online media). India is not alone, countries such as Singapore and Indonesia have introduced full-blown legislation to restrict “fake news”. In this post, I begin by noting that the term “fake news” suffers from several definitional hurdles that point to deeper structural problems in our media eco-system. I argue that there are several very good reasons why we may want to restrict some forms of misinformation. However, any restriction imposed on speech must comply with the constitutional safeguards set out in Articles 19(1)(a) and 19(2). Examining “fake news” restrictions against the concepts of vagueness, overbreadth and a disproportionate chilling effect, I argue that restrictions on “fake new” that are narrowly tailored enough to be constitutionally compliant are unlikely to be effective in combatting the social harms we associate with “fake news”. I conclude by advocating a heterogeneous approach to combat the issue of “fake news”.

A few caveats. First, because India does not yet have a “fake news” legislation, my analysis is necessarily in the abstract (even the Kashmir policy ultimately relies on provisions of the Indian Penal Code for prosecution). This post seeks to evaluate the consequences of restricting “fake news” as a category of speech and I accept that any restrictions imposed by the government may be more nuanced than a blanket restriction on “fake news” (although the signs are not promising). Second, there is a separate but cognate conversation to be had about the role of internet intermediaries in facilitating and restricting “fake news” that is worthy of a separate post and I have not addressed the issue here for the sake of brevity.

Protected Speech and its Limits

Before beginning it pays to recap a few important aspects of free speech regulation in India. While Article 19(1)(a) guarantees citizens the freedom of speech, Article 19(2) allows for “reasonable restrictions” in the interests of inter alia: (i) the sovereignty/integrity of India; (ii) the security of the State; (iii) public order; (iv) decency or morality; (v) defamation; or (vi) incitement to an offence. As we can see, speech in India can be restricted because of its consequences, that it may lead to violence, but also because of the speech’s content – that the meaning conveyed is deemed legally objectionable. The State evidently has an interest in restricting speech that directly leads to violence. However, in the case of obscenity laws or defamation, speech is restricted because of value judgements by the State. Obscene speech does not lead to violence, but the State believes that it leads to an erosion of public morality.

Any restriction on speech must have a proximate connection with a specific head set out in Article 19(2). The government cannot restrict speech merely in the ‘public interest’, or because it is ‘false’, neither of which are heads under Article 19(2). Therefore, if the government wanted to restrict “fake news” it would need to prove that “fake news” either caused harm because of its content (defamation, decency or morality) or that it was inciteful leading to violent consequences (public order, incitement to an offence). Lastly, there is a long line of cases noting that the ‘proximate connection’ means a real and imminent risk of harm arising from the speech and not vague speculation about possible future harms.

Defining “Fake News”

“Fake news” is a term bandied about very loosely nowadays which has resulted in everybody thinking there is consensus about the phenomenon being referred to, but very little certainty as to what content is “fake news” and what content is not. The term has been applied to satire, propaganda, biased reporting, sponsored or promoted content, factually incorrect reporting, entirely fabricated stories, or simply inconvenient truths. The term does not clarify whether it applies to private communications (WhatsApp chats), social media (Facebook), online media (an online-only news organisation) or even traditional print media. In a post Donald Trump era, the term also necessarily carries a derogatory component that is often independent of an objective evaluation of the actual content (Habgood-Coote refers to this as an ‘epistemic slur’). The flip side of this issue is that there is very little certainty about who a “journalist” is today, with citizens receiving news from a wide variety of sources.

The term “fake news” therefore refers to a heterogeneous field of content, some of which have a diverse set of underlying problems. This becomes immediately apparent when we look at the words we used to use to describe this type of content before we began using the umbrella term “fake news”. Inaccurate, false, misleading, biased, sensationalist, propaganda and advertisement are just some of the words to describe what we now call “fake news”. Using an exact term to identify the issue with a piece of content allows us to create targeted and meaningful solutions. For example, the type of regulation needed to regulate factual inaccuracies in a newspaper article is very different from the type of regulation needed to ensure paid advertising can be distinguished from news stories. We need to stop using the umbrella term of “fake news” and begin accurately labelling the specific harms caused by the speech in question.

From a free speech perspective, it is important to note that the distinction between “fake” and “real” is a politically contested one. The more polarised a society, the less likely it is that different parts of a population experience the same political reality. This makes legally regulating the fake/real distinction problematic, as seen in Singapore where the government sent orders to Facebook to “correct” individual posts. The posts alleged that the Singaporean government had illegally influenced investment companies, suppressed whistle-blowers, and rigged elections (here). This is emblematic of how governments can use a restriction on “fake news” to restrict a broad range of criticism and plenty has been written about the Indian government’s efforts to reshape the narrative in Kashmir (here). At the end of the day, governments place a pre-eminent value on self-preservation coupled with a bias towards their own political ideologies, and the ability to determine what is “fake” and what is “real” goes a long way towards silencing opposing viewpoints and homogenising political thought.

That said, there exist more nuanced definitions of “fake news” and a blanket ban on “fake news” is unlikely. For example, the European Union (in non-binding documents) doesn’t use the term “fake news” at all, rather it defines “disinformation” as ‘verifiably false or misleading information which cumulatively is created, presented and disseminated for economic gain or to intentionally deceive the public and may cause public harm intended as threats to democratic, political and policymaking process as well as public goods’. By requiring an evaluation of the intent behind the creation of the information and a (rather soft) the requirement for actual harm the European definitions seems to be less of a burden on free speech. But this also means it is less effective at curbing the spread of misinformation. Users may spread disinformation legitimately believing it to be true, and how does one assess when a ‘policymaking’ process is harmed? It also does not regulate other harms we associate with “fake news” such as media bias. It is worth keeping these considerations in mind as we consider the harms arising from “fake news” or “disinformation”.

The Argument for Regulating “Fake News”

There are two primary reasons why a government may legitimately wish to regulate “fake news”. First, misinformation or fabricated stories may directly result in violence, either through information about specific individuals or more broadly stoking pre-existing fissures in society (e.g. race or religion). India has already witnessed a string of violent incidents that investigative authorities have noted were either caused by or aggravated due to the spread of disinformation. Second, disinformation can interfere with the electoral process by misinforming voters about candidates’ political opinions, track records, previous misdeeds, and positions on important social issues. An uninformed voter is unable to vote for a candidate that best represents their interests, directly undermining the legitimacy of the electoral process and the resultant government. To make matters worse, disinformation is likely to disproportionately effect voters who do not have access to multiple sources of information (the poor and marginalised).

As Ari Waldman notes, in the long run disinformation can fundamentally alter public discourse by creating false equivalencies, particularly where political leaders spread disinformation. If a factually incorrect statement by a political leader must be accorded equal weight as the truth in the name of journalistic neutrality, a society may waste valuable public time and energy debating false stories (e.g. see the amount of time the U.S. media spends merely correcting President Trump’s demonstrably false statements). Over time, sustained bias or propagandistic reporting can harden political bias, causing citizens to select media sources that merely confirm their existing notions of true or false, further increasing polarisation.

To be clear, traditional justifications for the freedom of speech such as Mill’s argument that more debate over ideas ultimately lead to the truth (culminating with Justice Holmes famous ‘marketplace of ideas’ analogy) are not strictly applicable to “fake news”. To argue that we should produce even more “true news” (counter-speech) rather than restrict “fake news” is problematic for two reasons. First, it doesn’t work and inaction can lead to the type of cyclical harms referred to above (a recent MIT study found that false stories diffused further and faster than true stories on Twitter in all categories of information  (here)– in other words, the truth does not rise to the top).

More fundamentally, Mill’s theory and subsequent adaptations are premised on having more ideas and counter-ideas, not facts and “counter-facts”. Facts and opinions are very distinct in their nature but also share an important relationship when it comes to free speech. While there may be an infinite number of ideas or opinions about a fact, a fact is singular and objective. For example, whether there are Chinese soldiers inside what India considers its territory is a question of fact. The soldiers are either there, or they are not. What India should about the Chinese soldiers and its own territorial claims is a question of opinion with many possible answers. However, it is also important to acknowledge that “factual truth informs political thought” – in other words people’s opinions have a factual basis. For people to have meaningful opinions about the world, and for those opinions to interact with each other in meaningful debate, there must be an agreed upon factual basis. It makes sense not to restrict ideas and opinions because they open new avenues of thinking, however an agreed upon baseline of facts is fundamental to an informed debate about ideas. Returning to our example, how can we debate whether the government’s foreign policy was a success if we do not know whether the Chinese soldiers were in Indian territory or not? Therefore, a freedom of speech justification created to ensure free debate may actually favour some restrictions on “fake news” by ensuring a common baseline of facts.

Legally Restricting “Fake News”

Recall that under the constitutional scheme, all speech is free other than that which the government restricts because it is has a proximate nexus with the specific harms identified by the heads of Article 19(2) (public order, defamation etc.). Although the Indian Supreme Court has never explicitly dealt with the question of whether factually false statements are protected under the Constitution (the U.S. Supreme Court in Alvarez explicitly held such statements to be protected under the U.S. Constitution) factual inaccuracy is not a ground to restrict free speech under Article 19(2). Therefore, it is reasonable to assume that if the government wanted to restrict speech it classified as “fake news”, it would have to argue that the speech was either defamatory, would lead to a breach of public order, or amounted to an incitement to an offence. What amounts to a valid restriction under these heads of 19(2) have been widely discussed elsewhere on this blog and I do not intend to rehash them. Rather I argue that restrictions on “fake news” are likely to fall foul of two principles: (i) vagueness, (ii) overbreadth leading to a disproportionate chilling effect on speech.

Vagueness: A law is unconstitutionally vague if ordinary citizens cannot determine whether they have broken it or not. Imagine a law which restricted citizens from “honking too much” at traffic signals. How does a citizen determine how much is “too much”? The law does not provide a fair warning to citizens as to whether their actions will break the law or not. Vague laws also grant officials a large amount of discretion as to when a law has been breached or not (would you trust a police-officer to tell you when you are honking too much?).

Restricting speech on the ground that it is “fake news” would likely lead to widespread confusion about what kind of speech the government was restricting. Recall the broad range of content that comes under the banner of “fake news” – from satire to inaccurate reporting to fabricated stories. More nuanced definitions (such as that proposed by the European Union) may remedy this issue but are still unwieldy. The line between advocacy and deception is often imperceptible, with compelling arguments often cherry-picking or manipulating facts. Further, terms such as ‘threats to the democratic, political and policymaking process’ are so wide that they substantially increase the risk of the government selectively prosecuting speakers with unfavourable opinions. Kashmir is a living example of where free speech has been left entirely to the whims of the executive, and it has led to the denial of internet services, the arbitrary blocking of websites, and the persecution of journalists.

Overbreadth: A restriction on speech is “overbroad” when it restricts both the speech that the government can legally restrict (e.g. hate speech) but also goes on to restrict speech other speech that is constitutionally protected (e.g. dissent). In Shreya Singhal, the Supreme Court was called to adjudicate upon the constitutionality of Section 66A of the Information Technology Act, which criminalised speech that was “grossly offensive”. The court noted that any citizen may advocate a view on governmental, literary, or scientific issues that may be unpalatable or even “grossly offensive” to other citizens. While some speech may be justifiably restricted, not all speech that was “grossly offensive” rose to the level where there was an imminent risk to public order or incitement. This meant that, by using the term “grossly offensive” Section 66A also ultimately criminalised constitutionally protected speech. The court observed:

Section 66-A purports to authorise the imposition of restrictions on the fundamental right contained in Article 19(1)(a) in language wide enough to cover restrictions both within and without the limits of constitutionally permissible legislative action […] It must therefore, be held to be wholly unconstitutional and void.”

The term “grossly offensive” was so broad that it restricted some speech justifiably, but also other speech unjustifiably. In Shreya Singhal the court distinguished between discussion, advocacy, and incitement. It held that the first two formed the heart of constitutionally protected speech while inciteful speech may be legally restricted. Simply put, restrictions on speech that restrict inciteful speech and are broad enough to go on and restrict discussion and advocacy are unconstitutional.

If the government were to restrict “fake news” (a very broad category of speech), it would also likely restrict a vast amount of constitutionally protected discussion and advocacy. At its bluntest, satire, parody, and anti-government reporting could fall under the ambit of “fake news”. More critically, a restriction on “fake news” would create the risk of liability for journalists and media houses, that a single inaccurate factual assertion could lead to censorship or punitive action. For example, Kashmir’s new ‘Media Policy’ flat out dis-empanels journalists for publishing “fake news”. A news-report that exposed governmental overreach but contained a minor factual error or irregularity could be termed “fake news”, robbing readers of valuable information and robbing journalists of their livelihood.

Where restrictions on speech are vague, overbroad, and punitive, they create a chilling effect on speakers. Content creators, journalists, publishers, media houses and ordinary citizen are likely to ‘err on the side of caution’ and simply not speak rather than run the risk of their speech being adjudged as a crime. To avoid this chilling effect, the law of defamation incorporates what is known as the “actual malice” standard. It states that unless a speaker’s statement evidences ‘actual malice or a reckless disregard for the truth’, the statement cannot be considered defamatory. The logic is simple, with the vast amount of free-flowing debate in society a few inaccuracies are bound to crop up. Rather than aggressively prosecute these minor inaccuracies and frighten all other speakers, the law states that where these inaccuracies do not possess any ‘actual malice’ they are exempt from prosecution. In Rajagopal the Indian Supreme Court adopted the ‘actual malice’ standard in civil defamation cases and recently, the Madras High Court has adopted the standard in the context of criminal defamation (here). Defamation requires an alleged injury to reputation, something not all “fake news” is likely to cause. However, the rationale that minor inaccuracies should not lead to punitive action which has a chilling effect on speech should certainly apply, and any restrictions on “fake news” should incorporate the ‘actual malice’ standard.

The Government and the Truth

One last point may be made before concluding. In Alvarez, the U.S. Supreme Court struck down a statute which punished persons for falsely claiming to have been awarded military medals. In striking down the law, the court noted that that it was wary of the government claiming ‘broad censorial power to regulate falsehoods’, the mere existence of which would have a chilling effect on speech. To be clear, the government does regulate falsehoods in certain cases, most notably in the areas of defamation, consumer protection and fraud, and perjury. This is accepted because, the restrictions on speech are limited to the contexts where they are especially likely to cause harm and are actionable only where they cause actual harm to identifiable individuals. A restriction on “fake news” is much broader. A good news eco-system is more akin to a public good like a clean environment and “fake news” often attacks issues more than people – where it does attack people, the remedy of defamation is always open. Similarly, where the “fake news” is inciteful and capable of causing violence, India already possess a host of anachronistic laws that can be used to restrict and prosecute speech capable of causing violence. Without this proximate connection to real threats, regulating “fake news” creates the spectre of a government truth, something any democracy should be wary off.

Conclusion

The phenomenon often branded as “fake news” can lead to a diverse set of harms ranging from violence, damage to the electoral system and increased political polarisation. However, when examined in light of India’s freedom of speech jurisprudence, restricting “fake news” is constitutionally fraught. Above all, it is important to remember that the government cannot restrict speech merely because it is “false” or “inaccurate”. Briefly, any restriction on “fake news” would need to (i) show some real, imminent and identifiable harm; (ii) the harm would need to be a constitutionally recognised ground to restrict free speech under Article 19(2); (iii) consider questions of medium, time and impact of the “fake news”; (iv) incorporate the ‘actual malice’ standard; and (vi) be the least restrictive measure at the government’s disposal. This is not to say that it is impossible to draft legislation regulating “fake new” (several countries have already done it). There may be real value in pursuing narrow restrictions to reduce the effects of active disinformation campaigns during especially sensitive times (e.g. the run-up to elections). However, the phenomena of “fake news” rarely appears in such convenient forms and speech restrictions that are constitutionally compliant are unlikely to address the other diverse and systemic harms that “fake news” causes.

I began by noting that “fake news” is an amalgam term that houses several underlying issues we associate with our media-ecosystem. Understanding the underlying issues can lead to targeted solutions that bolster media literacy amongst the population and reduce the economic and political incentives associated with fabricated or propagandistic stories. Examples include ensuring a competitive media industry, disclosures requirements on social media sites about promoted content, investment in a truly independent state broadcaster, media literacy education in schools, and ultimately targeted legal interventions where constitutionally compliant speech restrictions may be meaningfully enforced. Merely sounding alarm bells at the rise of “fake news” opens the door to restrictions on speech and government censorship.

This post was largely in response to Kashmir’s Media Policy, which along with the Solicitor General’s statements represent a worrying trend by the government to adopt the clumsy but incredibly dangerous fake/real distinction to assert a dominant, government controlled narrative. In the future, I am sure there will arise more concrete examples that lend themselves to more detailed critique. The government’s position has long been that speech in Kashmir rejects the paradigm of the Indian State itself, representing a unique threat to the integrity of India. However, where the government seeks to preserve power through a stranglehold on truth itself, we have to ask ourselves whether the means employed to preserve the State have overridden what the State once stood for.

Coronavirus and the Constitution – XX: Parliamentary Accountability

We have already discussed on this blog how the government’s measures to contain the coronavirus outbreak at both the state and union levels have bypassed legislative accountability (here). In this post, I want to expand the discussion on legislative accountability by exploring three points: (1) the legislature’s role in placing temporal limits on the executive’s emergency powers; (2) how involving the legislature incentivises policy scrutiny and increases transparency; and (3) understanding whether Indian legislatures could have continued to function. I use the term ‘parliamentary’ accountability, but the argument is equally applicable to legislative assemblies in the states. The goal of this discussion is not to suggest that parliament continuing to function would have served as a silver bullet to bad policy or governmental overreach. Rather, the idea is to explore how the democratic structures of our Constitution can act as a restraint on government power – making it imperative that we demand more from our elected officials.

The legal sources of the government’s measures are the Disaster Management Act 2005 (“DMA”) and the Epidemic Disease Act 1897 (“EDA”). Under these two laws, the government has issued several ‘guidelines’ that form the legal framework of India’s ongoing ‘lockdown’. We often think that legislatures, with their lengthy debates, committee procedures, and voting are cumbersome bodies not suited to the decisive action required in an emergency. The truth of this is debatable. For example, the numerous clarifications and addendums to the Ministry of Home Affairs’ circulars demonstrate the value of debate and committee scrutiny. However, the choice of the DMA and the EDA become especially significant when we consider the two courses of action the Constitution itself provides for dealing with extreme situations calling for immediate action: (1) declare a constitutional emergency; or (2) pass an ordinance. Both a constitutional emergency and the passing an ordinance require that the legislature (at some future point) ratify the government’s actions. Therefore, we can conclude that even the most extreme situations contemplated by the Constitution involve some legislative oversight. The DMA and the EDA however bypass the legislative branch altogether resulting in a “rule by executive decree”. This has some important consequences.

The temporary nature of emergencies

Emergency powers are fundamentally temporary. The term ‘derogation’ is often used to explain the relaxing of some legal requirements during periods of crisis – but such relaxations are essential exceptions to the ordinary rule of law and all derogations have a recognised beginning and most importantly an end. When the crisis subsides, the political and legal system must return to normal. When a constitutional emergency is proclaimed under Article 352 of the Constitution, the emergency automatically ceases after one month if not placed before Parliament and (if approved) again automatically ceases after six months unless re-approved by Parliament. Even ordinary legislation granting wide emergency powers such as the U.S. PATRIOT Act (enacted in 2001 to fight terrorism post the 11 September attacks) contained a ‘sunset’ clause providing that large parts of the Act would cease to operate in 2005 unless renewed. An even more poignant example is the U.K.’s Coronavirus Act. Before it was passed, the (then) Coronavirus Bill granted the government emergency powers for two years. After the opposition objected, the government agreed to amend the Bill – providing that the House of Commons must debate and renew emergency powers granted by the Bill every six months. In evaluating the Coronavirus Bill, the House of Lords’ Constitution Committee noted: “Two years would have been too long for these powers to have operated without reapproval by Parliament and we welcome the cross-party agreement to reduce the period to six months” (here). The rationale behind granting the executive sweeping emergency powers is therefore always contingent on (1) the existence of a crisis; and (2) a return to normalcy at the earliest possible instance.

The following questions now become relevant. Who declares the start of an emergency? How long will the emergency last? Does it need to be renewed? Who is responsible for its renewal? Can the legality of the declaration be challenged in a court?

Precisely because an emergency vests significant powers in the executive, it makes sense that another body should be responsible for the declaration of an emergency. Otherwise what stops the executive from invoking an emergency in manner that is at best frivolous, and at worst self-serving. For example, a government could declare an emergency and use its emergency powers to silence political dissidents. In the U.S. even though the executive is tasked with all operational aspects of fighting a war, the executive cannot take any action unless the legislature (Congress) first passes a declaration of war. The U.K.’s unwritten constitution contains no notion of emergency powers and the executive is entirely reliant on the legislature first passing a legislation enabling the executive to exercise any additional powers. The same principle applies to renewals, it makes sense that a body other than the executive is responsible for renewing the executive’s emergency powers. Requiring another body to determine whether a situation is truly exigent and how long it will likely last for is an essential check against the abuse of emergency powers by the executive. This is a significantly stronger check than having courts adjudicate on the legality of the emergency proclamation after it is made as the damage may already be done by the time the court delivers a verdict (especially at the pace the Indian Supreme Court currently hears politically sensitive cases).

The Indian Constitution does envision Parliament playing a crucial role in the declaration of constitutional emergencies by requiring that all emergency proclamations be placed before Parliament within one month. Admittedly Parliament’s record of acting as a check on the executive with respect to emergency proclamations is a poor one – in July 1974 Parliament ratified the Indira Gandhi government’s emergency proclamation leading to three years of systemic governmental overreach. One may assume given India’s model of parliamentary democracy (where the executive’s party commands a majority in the legislature), legislative ratification is a forgone conclusion. While the individual judgement of parliamentarians has been severely curtailed by the anti-defection law, there still exists the chance (especially in coalition governments) that the government will have to work harder to appease the various factions of its own support base. Moreover, having even a token debate in parliament is a significant improvement on the current situation.

It is important to understand that the DMA requires no formal declaration of emergency (even under the Act’s own framework). Therefore, the ground reality is that the executive has been granted sweeping emergency powers, the courts are virtually at a standstill and public gatherings have been outlawed – all without an emergency being ‘declared’ or any justification for when exactly the coronavirus became an emergency or any indication of when the emergency will end. (The use of the term ‘notified disaster’ was used widely in the media but has no relation to the beginning or ending of the government’s emergency powers and only concerns the use of disaster relief funds.) It is particularly important to recognise that the coronavirus outbreak may be with us for a while. The nationwide ‘lockdown’ has already been extended twice. Much like the ‘war on terror’, what seemed necessary as an immediate response can perpetuate a permanent derogation from the rule of law. In a Parliament approved emergency, ratification by Parliament may have been (and with good reason) a foregone conclusion in March, but three, six or nine months later the government may have faced some pressure to justify a renewal of its emergency powers. Under the DMA however, they face no such pressure to justify a continued resort to emergency powers. Therefore, it is crucial to create temporal boundaries on the invocation of emergency powers and it is submitted that ratification by parliament is one method to do so.

Incentivising parliamentary scrutiny

The ratification of emergency proclamations and ordinances by Members of Parliament creates a powerful incentive for them to scrutinise government action and can require the government to moderate its position. During the coronavirus outbreak Italy used ‘Decree-Laws’ – a decree issued by the government which must be placed before the Italian Parliament within sixty days (here). Similarly, in India, an ordinance cannot be enacted unless Parliament is not in session and must be placed before Parliament upon its reassembly. The ordinance expires unless expressly passed as a piece of legislation by Parliament within six weeks of Parliament reassembling. What this means is that parliamentarians are on the hook for the legal content of these measures. While this may be less of an incentive for members of the ruling party, it creates an incentive for members of the opposition to scrutinise the legislation. Parliamentarians are held electorally accountable for their votes for or against a legislation and draconian measures by a government are unlikely to pass without some form of debate and scrutiny when brought before Parliament. For example, recently the opposition forced multiple adjournments in the Lok Sabha until the government agreed to discuss the communal violence in Delhi (here).

This brings us neatly to the point of parliamentary questions and debate – where members of the opposition have unfettered access to government ministers. Although the actual mechanisms of questions and the debate (or ‘zero-hour’) in Parliament are worth an independent exposition a few key points may be made here. The first is the nature of the threat we are currently facing. Unlike a war with another nation or the fight against ‘terrorism’ where increased transparency may hamper the government’s efforts to defeat the threat – in a public health crisis more transparency is always better. The government should disclose the scientific data on which it bases its decisions. This will not hamper the fight against the coronavirus but will expose bad decision making. Second, unlike questions asked in a newsroom or addressed on social media, questions asked in Parliament form part of the official record of the House and can be used to hold ministers accountable (here). Third, unlike the news media, Members of the legislature cannot be silenced by the courts (see Articles 105 and 194 of the Constitution under which Members enjoy legislative privileges). The Supreme Court’s recent efforts to silence ‘fake news’ and instead mandate reliance on information produced by the government and the statements of the Solicitor General of India make this particularly relevant. Lastly, parliamentary proceedings are broadcast live on national television and on the internet.

There is a deeper point to be made here. Government transparency, and ministerial accountability is fundamentally tied to the broader question of electoral accountability. During proceedings in parliament, it is government ministers who answer questions. This allows voters to evaluate the performance of the government first-hand in an unfiltered manner. To date, a Joint Secretary from the Ministry of Health has given almost all the coronavirus press briefings. The Joint Secretary is an unelected official and making such an official the face of the crisis disassociates ministerial responsibility from the actions of the government in combatting the crisis. Even in the U.S. where the President is not politically accountable to the legislature (outside the extreme case of impeachment), as the head of the executive the President has continued to deliver daily press conferences and answer questions – in stark contrast to the head of the executive in India. Neither the Health Minister not the Prime Minister is legally obligated to give press briefings, but their refusal to do so makes Parliament one of the last forums where the government can be asked hard questions.

Could Parliament have continued to function?

This post would not be complete without addressing the elephant in the room. On 23 March 2020 Parliament was adjourned over fears that the gathering of Members would act as a vector for transmission. Two questions must be answered: (1) can Parliament legally meet outside its official seat; and (2) what the alternative options that Parliament can adopt are. Article 85 of the Constitution permits the President to summon Parliament “at such time and place as he thinks fit” and Rule 11 of the ‘Rules of Procedure and Conduct of Business in the Lok Sabha’ states that “A sitting of the House is duly constituted when it is presided over by the Speaker or any other member competent to preside over a sitting of the House under the Constitution or these rules.” (Rule 10 of the Rajya Sabha rules contains an analogous provision.) Therefore, the short answer is that the place of meeting does not matter so long the President summons Parliament and the Speaker, or other competent person, presides over Parliament. (Interested readers may refer to Shubhankar Dam’s article on precisely this point. He cites historical instances where the ‘place’ of meeting has been in dispute.)

Therefore theoretically, Parliament can meet at an alternative location that is more conducive to social distancing norms or even potentially online. Some comparative context is useful here. Several countries, Australia, New Zealand and Germany amongst them, have struggled to keep their legislature’s open and have adjourned them during the present outbreak. However, Congress in the U.S. has met several times to pass emergency economic legislation. The House of Commons in the U.K. has met virtually, with Members asking questions from remote locations. Similarly, the Canadian Parliament has managed to meet virtually. Perhaps most tellingly, the Indian Supreme Court and various High Courts have managed to implement protocols to allow virtual hearings for thousands of litigants since the beginning of the ‘lockdown’. There would certainly be some teething troubles, but it would not be beyond the realm of possibility to assume that the Indian Parliament could continue to function during the ‘lockdown’. I will end this discussion with two points. As I noted earlier, Parliament sitting is not a silver bullet to all the country’s ailments – given the legislative frameworks which already exist under the DMA and the EDA and the ever present anti-defection law Parliament’s role would certainly be limited. However, eliminating Parliament from governance during an emergency is neither contemplated by the Constitution nor is should it be condoned by the voters who elected this Parliament. At the very least, the limited benefits of Parliament sitting highlighted here could be secured.

Concluding thoughts

Notions of accountability flowing from a separation of powers model focus on preventing the centralisation of power in one body. For example, the body making the law should be distinct from the body implementing or interpreting the law. However, this model fails to incentivise those in power to listen to citizens. Legislators in the minority can blame those in the majority, the government can blame the judiciary for curbing its measures, and the judiciary can blame an overzealous legislature or the executive (see the eternal dispute over judicial appointments).

Competition for power through democratic structures creates a vital link between citizens and their agents in government. It forces the three wings to look beyond horizontal competition inter-se the executive, the legislature and the judiciary and consider a vertical balance of power where rival power seekers must convince citizens of their ability to effectively govern. This is particularly effective in a plural society such as India where there exists a multiplicity of groups with cross-cutting interests and membership, forcing those in power to cater to a wide range of interests. Parliamentary accountability is one of the best examples of how competition for power can further the interests of citizens. ‘Politicking’ during a crisis may be frowned upon but is also an excellent method to ensure that the citizen’s preferences are accounted for in governance. It forces those in power to accommodate the needs of more diverse interests or risk losing the mandate to govern. A healthy legislative body should ensure this robust competition for power. The strength of the Indian parliament as a deliberative body which can hold the government accountable has been in decline for some time, but the present crisis should not be its death knell.

On the role of courts: and why the supreme court is playing the waiting game

On the Supreme Court’s last working day of 2019, it agreed to hear the constitutional challenge to the Citizenship (Amendment) Act 2019 (“CAA”). With this, the court takes into its winter vacation the challenges to the CAA, the amendment of Article 370 and the internet shutdowns in Kashmir. Outside the cloistered halls of the court, the public debate over the legality and desirability of these measures has reached fever pitch. With both the legal and political processes of contestation in full swing, it is an appropriate time to examine how divorced the two truly are.

Our trust in courts as institutions of justice flows from a few key ideas: that courts are isolated from short term political pressures, they decide on the basis of settled legal principles irrespective of how politically sensitive a case is, and they are independent from the elected government of the day and thus serve as a check on government power. This piece critically examines these assumptions about courts. I argue that while courts do decide cases in accordance with legal principles, the actual outcomes of crucial constitutional cases balance the requirements of the law, deference to the government, and deference to public sentiment. Recognising that alongside normative legal principles, public sentiment and the government have a crucial role to play in constitutional adjudication re-emphasises the need for active political contestation and debate over these issues.

Isolation, independence and matters of principle

Courts are understood as being isolated from short term political pressures. Unlike elected legislators, who are accountable to their constituents and respond to their immediate needs, unelected judges with fixed tenures and salaries can deliberate in a ‘neutral’ manner and render decisions that may be politically unpopular but necessary for the long term preservation of human rights and democracy. Judges are not bound by party ideology or the need to garner the popular vote, so they can arrive at substantively ‘better’ decisions. For example, after a terrorist attack, public sentiment may overwhelmingly favour the torture and public execution of a captured terrorist. The government, acting on the demands of the electorate, may decide to torture and execute the terrorist (after all, good government responds to what the people want). The courts however, isolated from public sentiment and understanding the long-term benefits of upholding the rule of law and human rights, can ensure the captured terrorist receives a fair trial.

A second assumption underpinning the public trust in courts is that courts rely on precedent (stare decisis) and settled legal principles to decide cases. Therefore, once courts construe the phrase ‘equality’ or ‘liberty’ as having an expansive meaning, the same expansive interpretation will subsequently be applied irrespective of how politically significant or insignificant the facts of a case. This is often why progressive judgements are celebrated, because we presume that the reasoning of these judgements will bind future benches of the court and lower courts. The last, and perhaps most significant, assumption about courts is that they stand independent from the elected government. Coupled with their isolation from short-term political pressures and their commitment to decide cases on legal principles, this leads to the overarching argument that courts stand as a check against the abuse of government power.

A chequered track record

A close examination of the track record of courts during periods of regularised and flagrant human rights violations casts doubt on the argument that courts are effective checks on majoritarian government power. In India, the most famous example of the court’s failure to resist the use of government power is ADM Jabalpur v S S Shukla. The case, heard at the height of the emergency imposed by former Prime Minister Indira Gandhi after her election was challenged in 1975, centred around whether individuals detained by the government (often political opponents of the Prime Minister) had a right to approach the courts for relief during the emergency. Despite several High Courts holding that detained persons had a right to approach the court even during an emergency, in ADM Jabalpur the Supreme Court held that no such right existed and left the detentions to the sole supervision of the government. The Indian Supreme Court is not alone in turning a blind eye to the exercise of government power against its citizens during times of national or political crisis. After the attack on Pearl Harbour, the U.S. Supreme Court upheld the internment of all persons of Japanese ancestry in Korematsu v United States – citing the overriding needs of national security and avoidance of espionage. In Liversidge v Anderson the House of Lords held that the Home Secretary did not have to objectively justify his detention order with reasons and the such matters were not justiciable in courts. These cases have since been overruled or denounced as ‘black marks’ on an otherwise unblemished record of judicial history, but they serve as powerful reminders that when governments exercised their power against citizens in the most extreme ways, courts have been found to be inadequate protectors.

Sabarimala – the Supreme Court’s problem child

A prime example of how far the Indian Supreme Court’s behaviour can stray from the core assumptions we associate with courts acting as politically insulated institutions dispensing justice according to legal principles is the court’s treatment of the Sabarimala dispute. To recap: in 2018 a five-judge bench of the Supreme Court struck down the prohibition on menstruating women entering the Sabarimala temple as violating the constitutional guarantees of equality and non-discrimination. The judgement led to a public backlash in Kerala (the state where the Sabarimala temple is situated). Those opposing the judgement took the law into their own hands and refused to permit the entry of women into the temple, often attacking women who tried to enter. A review petition was filed against the 2018 judgement, the significant irregularities of which have already been addressed on this blog (here) and do not need to be rehashed. It is sufficient to note that one judge (Khanwilkar J) refused to stand by the judgement he had signed less than a year ago in 2018 and in November 2019 the court decided that the 2018 judgement needed to be ‘reconsidered’ by a larger bench. To understand what happened next, it is important to note that by referring the dispute to a larger bench, the court did not stay the 2018 judgement but merely kept the review petition pending. The pendency of a review petition does not deprive a judgement from having the force of law. This means that at the time of writing this post, the 2018 judgement remains good law and a woman should be able to enter Sabarimala. When the Supreme Court was asked to direct the Kerala Government to uphold and enforce the judgement, the Chief Justice of India acknowledged that there was no stay on the 2018 judgement, but refused to direct the State Government to enforce the judgement – noting the matter was “very emotive” and the court wanted to avoid violence.

The treatment of Sabarimala is a testament to how the Indian Supreme Court consider both legal principles and public sentiment in deciding constitutional cases. The 2018 judgement was based precisely on the legal principles we associate with constitutional courts. However, unlike the court’s decisions decriminalising consensual gay sex or adultery, where the court’s decision faced widespread and organised public resistance, the court did a double take, refusing to enforce its judgement and stating that the judgement itself needed to be ‘reconsidered’. The ‘settled’ legal principles of equality laid down in 2018 (which we expect to bind future courts) succumbed to the changed political landscape of 2019. Changing public sentiment leading to the court ‘flip-flopping’ on outcomes is not new, and not always detrimental to the rights of citizens. For example, in 2013 the Indian Supreme Court refused to decriminalise consensual gay sex but five years later the court did decriminalise it. It is perfectly possible for future benches to disagree with past ones; however, the incremental nature of such change is essential to maintain the public trust that courts are insulated from the politics of the day. The casting in doubt of Sabarimala within a year, in the face of abject and consistent non-compliance with the judgement by the government and citizens, points to just how thin the court’s veneer of being insulated from public sentiment and deciding cases purely on legal principles is.

Plenty has been written on why the CAA is unconstitutional and should be struck down for violating Article 14 and its resultant jurisprudence (including here on this blog). However, the very idea that the court will apply the legal principles it has previously laid down is caveated by the court’s regular deviation from settled principles in the face of troubling ground realities or persistent public sentiment to the contrary.

Judicial independence 

The last assumption is that courts stand independent of the government and form the ultimate protectors of individual rights against state action. Historically, we have seen that this has not always been the case. As a matter of constitutional design, courts control neither the ‘sword nor the purse’. In other words, courts rely on the government to implement and abide by their decisions. The extent to which the government does so is a function of how much public legitimacy and authority the court wields at any given time. In a handful of jurisdictions, court have over centuries entrenched themselves to a point where non-compliance with their judgements is unthinkable and a government refusing to comply with a court judgement would risk being voted out of power by an electorate that deeply values the rule of law. For example, when the British Prime Minister’s advice to the Queen to suspend parliament was found to be unconstitutional by the U.K. Supreme Court, the question was not whether the Prime Minister would comply with the decision, but rather whether he would apologise to the Queen and British public.

In most jurisdictions however, where courts have not had the time or opportunity (or have squandered both) to create a deep sense of institutional credibility and win the public trust, courts are far more vulnerable to government interference.  If a court were to repeatedly strike down government action, the government can register its discontent with the court in several ways. The most common (and visible) tactic is to delay/interfere with the process of judicial appointments. Right from Indira Gandhi’s appointment of A N Ray as Chief Justice (superseding the three senior most judges of the Supreme Court who had ruled against her government) to the current government’s delays in confirming judges, Indian courts have regularly been susceptible to government pressure over judicial appointments. The government may also refuse to provide funding and infrastructure for courts. At the extreme, the government can simply refuse to comply with or implement the judgements of the court. The Indian Home Minister’s recent suggestion that the non-implementation of Supreme Court judgements was an acceptable state of affairs runs dangerously close to an outright refusal to acknowledge the authority of the court. In such situations, courts must not only apply the law, but also balance the needs of the law with deference to the government to ensure the court’s continued survival as an institution.

Indian jurisprudence is replete with such deference. In 1975 when the Allahabad High Court found the then Prime Minister (Indira Gandhi) guilty of corrupt practices and invalidated her electoral victory, the government passed a constitutional amendment designed specifically to nullify the invalidation. In the Supreme Court, the constitutional amendments were struck down, but the Prime Minister’s election victory was upheld, allowing Indira Gandhi to remain in power. In Maneka Gandhi v the Union the petitioner’s passport was impounded, and no reasons provided. She approached the court contending that her right to a fair trial and to put forth her defence had been taken away. In a sweeping judgement, the court significantly expanded the scope and rigour of scrutiny, holding that procedure by which liberties are infringed must be ‘fair, reasonable and just’. However, rather than invalidate the order impounding of the passport or the provisions of the Passport Act, the court took on record the Attorney General’s assurance that the government would ‘consider’ the court’s observations and left the matter to the government. Ironically, the last paragraph of Maneka Gandhi (widely touted as a high watermark of Indian human rights jurisprudence) reads:

“The Attorney General assured us that all the grounds urged before us by the petitioner and the grounds that may be urged before the authority will be properly considered by the authority and appropriate orders passed. In the result, I hold that the petitioner is not entitled to any of the fundamental rights enumerated-in Article 19 of the Constitution and that the Passport Act complies with the requirements of Art. 21 of the Constitution and is in accordance with the procedure established by law.”

The Chief Justice’s recent refusal to pass directions for the entry of women at Sabarimala stems in part from the fact that both the Kerala Government and Central Government have indicated their unwillingness to carry out such directions. An order directing the authorities to enforce the judgement would likely be ignored by both governments, triggering a constitutional crisis.

The present day

Having understood that while not entirely independent, the court is undoubtedly uniquely situated, let us examine the court’s recent decisions where the stakes for the government were particularly high. In its Aadhar judgement, the court upheld the government’s collection and use of bio-metric data as part of the Aadhar scheme. The court in 2018 also held the Aadhar Act was correctly certified by the Speaker as a money bill (meaning it was not subject to scrutiny by the Rajya Sabha). But a year later in Rodger Matthew v South Indian Bank the court held that the Aadhar judgement’s reasoning on the issue of money bill was “arguably liberal [in favour of the government]” and “not convincingly reasoned”. The question of how future courts should construe money bills has been referred to a larger bench but peel away the Supreme Court’s strategic antics and the decision in Rodger Matthews is a damming admission that the Aadhar Act was unconstitutional but still upheld by the court.

The Supreme Court’s treatment of the petitions challenging the internet shutdown and detentions in Kashmir and the amendment of Article 370 has been the clearest example of the court’s deference to the government of the day. On 16 September 2019 the court passed an order (analysed here) which didn’t require the government to disclose the legal source of the internet shutdown and left it to the unrestricted discretion of the government to make “endeavours” to restore “normal life”. On 16 December 2019 the internet shutdown in Kashmir entered its 134th day, the longest ever recorded in a democracy. At the time of writing this post, the court is yet to adjudicate on the constitutionality of the internet shut down and the hearings challenging the actual amendment of Article 370 have just taken off.

Recall that vulnerable courts are often called upon to balance the meaning of the law with ensuring a working relationship with the government. After 70 years of democratic constitutionalism, our courts are certainly robust enough to avoid obliteration at the hands of the government. They regularly strike down state and central government actions found to be violative of the Constitution. However, with cases such as Aadhar, Sabarimala, the CAA and Kashmir, where the political stakes for the government are exceptionally high, cracks begin to emerge in the court’s multi-faceted balancing act between the law, public sentiment and deference to the government. In ADM Jabalpur the court compromised its fidelity to the integrity of the law and allowed the government a free reign in return for its continued survival (the supersession of Justice Khanna and the regular transfer of ‘non-complaint’ High Court judges by the government is telling in this regard). Today’s court is neither willing to expressly compromise its intellectual fidelity to the law nor its necessary relationship with the government – and so it sits on the fence, hoping that nobody will notice. The court does not trust its institutional legitimacy is strong enough to rule against the government on politically sensitive matters and continue to maintain a working relationship with the government (the government is equally to blame for this lack of trust). While it also refuses to expressly abandon its fidelity to the integrity of the law (as it did in ADM Jabalpur) and provide express judicial acquiescence of the government’s actions, its refusal to act is fast achieving a similar result indirectly.

Conclusion

Recognising that the central assumptions held about courts as counter-majoritarian institutions are flawed is the first step towards understanding the actions of the Supreme Court recently. The court undoubtedly analyses and applies legal principles on a day to day basis. However, in deciding constitutional cases with high political stakes, courts also consider the impact the decision will have on the government (Aadhaar and Kashmir), the prevailing public sentiment of the day, and the impact on the ground (Sabarimala). Absent any enforcement powers, the court’s is as bold as it thinks the government and people will allow it to be.

In deciding the host of thorny issues on its plate in 2020, the Supreme Court is likely to consider the prevailing public sentiment, strive to maintain a working relationship with the government, and lay down some important law. While the court’s legal questions will be answered by a handful of lawyers in Courtroom 1, the question of how strictly the court will apply the law to fulfil its constitutional role as a meaningful check on government power will be answered by every other Indian. This calls for renewed scrutiny of the court’s actions that denude the legitimacy of its decision making process (some examples include the use of sealed covers, the (mis)use of the master of the roster role, a flawed appointment process and the regular overriding of High Courts). Such actions not only violate core legal norms, but also reduce the public trust in the institution, reducing its institutional authority to act as a check on government power. Understanding the limitations of courts also highlights the need to strengthen the accountability and contestation within other wings of government beginning with our electoral and parliamentary processes.

Financing the General Elections: Electoral Bonds and Disclosure Requirements under the Constitution

The electoral bonds scheme was introduced by the 2017 Finance Act, challenged before the Supreme Court in 2018, and made headlines in 2019 when the court finally began hearing the matter and passed an interim order. Briefly, the scheme allows individuals and companies to purchase “electoral bonds” issued by the State Bank of India and subsequently donate the bonds to a political party. Under the scheme, only a political party registered under the Representation of People’s Act 1951 (RPA) is eligible to receive and encash electoral bonds. Electoral bonds are therefore bespoke campaign finance instruments to allow donors, or ‘contributors’, to contribute to political parties. The bonds are issued in denominations ranging from one thousand rupees up to one crore.

Crucially, through several legislative changes (discussed below), political parties do not have to disclose to voters either the identity of the contributor, or the amount received through electoral bonds. The electoral bonds scheme itself provides that,

the information furnished by the buyer shall be treated [as] confidential by the authorised bank and shall not be disclosed to any authority for any purposes, except when demanded by a competent court or upon registration of criminal case by any law enforcement agency.

One of the grounds on which the scheme has been challenged is that citizens have a right to know the identity of the contributors and the amounts being contributed to each party. In its interim order, the Supreme Court required all political parties to submit to the court (in a sealed cover) the details of money received under the electoral bonds scheme.

On this blog we discussed the concerns raised by the Supreme Court’s interim order (here). In this post I argue that the electoral bonds are part of a more comprehensive legislative agenda which increases the overall volume of campaign contributions and decreases the information voters have about these contributions. I then examine whether the electoral bonds scheme is constitutional in light of the Supreme Court’s jurisprudence on a citizen’s “right to know” under Article 19(1)(a) of the Constitution. Exploring the rationale behind a voter’s “right to know”, I argue that disclosing campaign contributions is necessary because it allows voters to better understand a candidate or party’s position on important issues and evaluate whether a candidate (and eventually, elected official) is “too compliant” with the wishes of their contributors.

Recent changes in campaign finance law

The current government has made several changes to campaign finance laws in the last two years. Firstly, the government removed the cap on corporate donations contained in Section 182 of the Companies Act 2013 under which a company could not contribute more than 7.5% of its net profits for the previous three years. The amendment also removed the requirement that companies disclose the total amount contributed and identity of the political party that the company contributed to. There is now no cap on how much money a company can contribute to a political party. Further, by removing the requirement that the political contributions must come from profits, there is a risk that donors set up shell companies that do not actually conduct any legitimate business but exist solely to funnel money to political parties.

The government also amended the Foreign Contributions Registration Act (FCRA). Under the FCRA as it stood before the amendment, companies that were more than 50% foreign owned were prohibited from donating (or “contributing”) to political parties. The amendments removed this 50% threshold, permitting companies that are 100% foreign owned to contribute to political parties.

Circling back to the electoral bonds scheme, prior to the amendments by the government, political parties were required to report all contributions over twenty thousand rupees (under Section 29C of the RPA) and keep a record of the name and address of all such contributors (under Section 13A of the Income Tax Act). Under the government’s amendments, both these reporting requirements were removed in the case of contributions made through electoral bonds.

Thus, it is important to recognise that electoral bonds are part of a sustained and comprehensive legislative agenda that is likely to see a significant increase in campaign contributions to Indian political parties and a significant decrease of information about these contributions to voters. As I argue below, both these outcomes have consequences on the functioning of democracy under the Constitution.

Some Context on Campaign Finance

Campaign finance is a vast and nuanced area of law and political theory, and the intention here is merely to touch on a few simple points to provide context to the legislative changes introduced by the government.  Firstly, a core tenet of democracy is that citizens collectively choose a representative government. Only a government chosen by the citizens is legitimate. Therefore, the process by which citizens choose their representatives (elections) is of paramount important. If elections do not provide citizens with a free and fair method of selecting a candidate of their choice, then the elected government cannot be said to be chosen by the people, and would be illegitimate.

Elections in all countries cost money. However, methods of financing elections vary greatly, from systems of publicly funded elections, to systems of unlimited private contributions. India is somewhere in the middle, private contributions are permitted, but spending by political candidates is capped. In a system where public money is used to finance elections, voters have no interest in knowing how candidates are financed, because all candidates are using public money. However, as we move towards private contributions, and unrestricted private contributions, things get a bit trickier. Where private contributions are permitted, who is funding a candidate becomes an essential part of the candidate’s platform, because contributors will donate to candidates who support their ideas, and candidates may even modify their ideas to secure funding. Thus, a candidate’s stance on issues and who is funding them becomes intricately linked. Thus, in an electoral system where candidates are privately funded (and as I argue in detail below) voters do have an interest in knowing who is funding a candidate.

Corruption

Lastly, it is important to separate campaign contributions from corruption. Corruption, simply, is when a candidate (as a potential elected official) uses their position to enrich themselves personally. Campaign contributions do not enrich the candidates personally, but rather are used by candidates to acquire more votes. (It is possible that some candidates use contributions to enrich themselves, but that is a separate debate.)

The real problem that that campaign contributions can raise is a “quid-pro-quo” deal. Where a candidate takes money from a contributor, and once elected, votes in favour of laws that benefit the contributor. This concern is articulated by the U.S. Supreme Court in Nixon v Shrink Missouri Government PAC, where the court noted that the concern raised by political contributions is a concern “not confined to bribery of public officials, but extending to the broader threat from politicians [being] too compliant with the wishes of large contributors.” But when is a politician “too compliant”? Is it merely when she votes against the interests of the majority of her constituents? Arguably, in a democracy, it is desirable that voters signal to candidates what their preferences are, both through votes, as well as political contributions. Subsequently, when an elected legislator votes in line with these preferences, they are merely being responsive to the needs of their constituents. Say for example, a rich religious minority that has been historically persecuted contributes large amounts to a candidate, who subsequently votes for a law which prevents future persecution of that minority, can we say that such a candidate is “too compliant”? It is highly likely that such a candidate would have voted the same way irrespective of the contributions. As I argue below, disclosures help with this as well.

One problem that increased contributions can result in is the translation of economic inequality to political inequality. If elected officials respond to issues that have received the greatest support from their constituents in the form of the maximum contributions, the legislative agenda may represent the interests of the largest contributors, and not all individuals in their constituency. This may drown out the political demands of economically weaker sections of society. However, this is a risk inherent in all systems that allow private political contributions and is unlikely to disappear until we either have publicly funded elections or the wider economic inequalities in society are tackled.

Article 19 and the “Right to Know

The most recent hearings on electoral bonds centred around whether the Constitution grants voters the “right to know” who contributed to which political parties, and how much they contributed. Article 19(1) of the Constitution grants all citizen’s a right to free speech. The Article also grants citizens the right to receive information from a person who is willing to speak and share their speech. However, typical conceptions of the freedom of speech do not grant a citizen a right to receive information from an unwilling speaker. In other words, the freedom of speech typically provides a negative right against interference from receiving ‘generally available’ information, but not a positive right to gather or acquire information.

To take an example, the freedom of speech grants a journalist the right to publish an article about a failed military operation by the government. The freedom of speech also protects a citizen’s right to receive the article from the journalist. If the government were to ban the journalist’s article on its failed military operation, this would violate not just the journalist’s freedom of speech but also the citizen’s right to receive information that the journalist wishes to share. However, the freedom of speech does not typically grant the citizen a right to demand details of the failed military operation from the government itself. This would require a separate positive right to acquire information (e.g. as provided by the Right to Information Act 2005).

However, the Indian Supreme Court has expressly recognised that Article 19(1) of the Constitution confers on citizens a positive right to know information about electoral candidates. The Supreme Court has been fairly categorical about this position, noting in its Union of India v Association of Democratic Reforms  decision (Union v ADR)  that, “There is no reason to that freedom of speech and expression would not cover a right to get material information with regard to a candidate who is contesting elections for a post which is of utmost importance in the country.

One of the key roles of freedom of speech in a democracy is to ensure public discourse so that all voices and ideas are heard at the time of collective decision making. By including a positive right to know about electoral candidates, the court has stated that for the effective functioning of democracy under the Constitution, it is not enough that the voice of all candidates are heard. Rather, what is required is that voters receive a minimum standard of information that allows them to make an informed decision, even if the candidates would otherwise be unwilling to provide this information. This is perhaps best articulated in Romesh Thappar v State of Madras where the Supreme Court noted, “The public interest in freedom of discussion stems from the requirement that members of democratic society should be sufficiently informed that they may influence intelligently the decisions which may affect themselves.

In later decisions, the Supreme Court has been far more explicit about the fact that voters must not merely be provided access to the ideas a candidate wishes to portray, but also other objective information that will ensure that the voter makes an sufficiently informed decision. For example, in Union v ADR the court noted that, “Casting of a vote by a misinformed and non-informed voter or a voter having one-sided information only is bound to affect democracy seriously.” What the court is articulating is that standard to be applied to the functioning of democracy under the Constitution, and the standard is not satisfied merely by ensuring that all candidates can freely speak and disseminate their ideas. It requires, at a bare minimum, that voters be sufficiently apprised of their electoral candidates to the point where they can make an informed decision about which candidate is likely to best represent their interests in government. To ensure this, Article 19(1) grants voters a positive right to acquire information about candidates, even if the candidates are unwilling to provide this information.

In Union v ADR ruled that electoral candidates must disclose their assets, educational qualifications, and their involvement in criminal cases for voters to be make an informed decision. This sets a high threshold for the standard of information a voter must possess before voting, leaving the government hard-pressed to argue that voters do not need to know the identity and amounts of political donations received by candidates and parties. As I argue below, the identity of a candidate’s contributors is crucial in allowing voters to make an informed decision.

Disclosures in a Democracy

Recall that the electoral bonds scheme and the surrounding legislative amendments have two primary consequences, (1) they increase the total volume of political contributions, and (2) make it neigh impossible for voters to discern the identity and volume of donations made to candidates. The most obvious function of disclosures is that where the conduct of a legislator blatantly panders to a political contributor without any public utility, disclosures bring to light such behaviour. As the Supreme Court noted in People’s Union of Civil Liberties v Union of India, “There can be little doubt that exposure to the public gaze and scrutiny is one of the surest means to cleanse our democratic governing system and to have competent legislatures.”

However, beyond this, disclosures allow voters themselves to decide when an elected official is being “too compliant” with the wishes of their contributors. As noted above, it is often difficult to determine when an elected official is “too compliant” with the wishes of their contributors. It is likely that individuals will disagree over when an elected official’s action is “too compliant”. However, when contributions are disclosed, each voter can decide for herself when an official’s behaviour is “too compliant” with the interests of their respective contributors and punish the legislator by not voting for them in the next election. As the U.S. Supreme Court noted when examining the constitutionality of campaign finance disclosures in the landmark decision of Buckley v Valeo (Buckley), disclosures “provide the electorate with information as to where political campaign money comes from and how it is spent by the candidate in order to aid the voters in evaluating those who seek federal office.” Knowing whether an official is likely to represent, or only represent, the wishes of their political contributors is crucial information for an individual voter in deciding whether the official will represent that individual voter’s interest in government.

Lastly, as noted by Elizaabeth Garrett, campaign contribution disclosures allow voters to understanding where a candidate stands on key issues. For example, a voter may not have the time or expertise to discern whether a candidate is in favour of the coal industry based on a candidate’s manifesto or draft legislation. However, when the voter learns that the candidate receives most of her campaign contributions from the coal industry, the voter may understand that the candidate is in favour of the coal industry. This is because the interest groups closest to the issue (the coal industry) would only have contributed to the candidate’s campaign because they believe that the candidate will support legislation beneficial to the coal industry. Because contributing to a campaign is “an observable and costly effort on the part of the contributor”, knowing who contributed to a campaign allow voters to discern a candidate’s likely position on issues. (Garrett also cites empirical studies where voters informed of whom contributed to a candidate were able to vote on-par with candidates who had actively researched candidates – her paper on disclosures and voter competence can be found here.)

Recall that the Supreme Court has already stated that for voters to effectively exercise their role as voters under the Constitution, they must be provided with certain basic information. A key question in case of electoral bonds scheme is whether the identity of the contributor and the quantum of the contributions received by the candidates is part of this essential information a voter should receive to be sufficiently informed. By denying voters this information, the electoral bonds scheme makes it impossible for voters to understand when their elected politicians are acting in favour of large political contributors – even the politicians may be blatantly doing so. Further, electoral bonds allow politicians to hide their position on certain issues by receiving funding from interest groups anonymously. A voter might be inclined to vote for a candidate based on their publicly available information such as a candidate’s speeches or track record. However, that same voter may hesitate if they discovered that the candidate received large amounts from interest groups promoting religious persecution, or tax cuts for large business.

The Government’s Arguments

In defending the electoral bonds scheme, the government has argued that electoral bonds reduce the amount of ‘black’ (i.e. illicitly obtained) money in elections, as contributions are routed through the State Bank of India which performs ‘Know-Your-Customer’ checks on contributors. This does not eliminate the risk that a contributor will merely funnel ‘black’ money through a legitimate or ‘clean’ company or individual, especially as neither companies nor political parties are required to keep a record of large donors any more. In short, the electoral bonds scheme does nothing to ensure that the origin of the money contributed is legitimate.

Another argument that may be used to defend the electoral bonds scheme is one of contributor privacy. As discussed earlier on this blog (here), individuals have a right to the privacy in their associations, and this would include a contributor seeking to donate to a candidate. Take the example of a candidate who speaks out in favour of a religious minority. If the state were to publish the names of all the people who contributed to this outspoken candidate, these contributors might be dissuaded from contributing to the outspoken candidate. Worse, the contributors may face persecution precisely for contributing to the outspoken candidate (something they have a constitutionally protected right to do). Thus, by not protecting the privacy of their  (political) associations, the state would be violating their right to participate in the electoral process.

This is certainly a concern and arguably, where contributors are at risk, a balance must be struck. Garrett notes that in Buckley, as well as in Brown v Socialist Workers, the U.S. Supreme Court exempted campaigns from making disclosures where there existed “specific evidence of hostility, threats, harassment and reprisals.” This is a balanced solution. In the general, where there are no risks to contributors, the voters right to know requires candidates to disclose their contributors and contributions. In specific instances, where a credible risk exists that compelling disclosures will dissuade or put at risk contributors, their privacy must be maintained. Electoral bonds however, exempt disclosures in all situations. Thus, unless the government is able to reverse this – generally requiring disclosures, and creating a nuanced system as to when parties can be keep the source of contributions anonymous, the electoral bonds scheme violates the voters right to know.

Conclusion

To provide some context to the scale of the problem, information procured under the Right to Information Act from the State Bank of India noted (here) that over six hundred crores worth of electoral bonds were purchased between March and October of 2018. The Supreme Court’s interim order in the electoral bonds case is troubling. By refusing strike down the electoral bonds scheme and compel parties to disclose to the citizens of the country who is financing them, the court has taken a step back from its previously strong jurisprudence on a voter’s right to know. Striking down these amendments would have sent a strong signal that any amendments to campaign finance laws must respect that democracy under the constitution requires an informed and empowered voter.  As noted above, who is funding a candidate is vital information that allows a voter to understand where a candidate stands on key issues. That the court refused to do this during an ongoing general election, when this information is most relevant to voters, makes the court’s current stance particularly egregious.